Environmental Law—The SCOTX Report

23-0244·Petition For Review

TCEQ did not miss its ten-day deadline to ask the Attorney General whether it could withhold documents requested by the Sierra Club: its follow-up email seeking to narrow the request reset the clock, and it also gained time by proving it deposited its request in interagency mail.
The Court reversed the summary judgment ordering TCEQ to produce the documents and remanded, noting the Attorney General's office disavowed its own late-request decision.

23-0282·Petition For Review

TCEQ's Tier 2 antidegradation rule asks whether a discharge lowers a water body's overall "water quality" by more than a de minimis extent, not whether any single water-quality parameter such as dissolved oxygen changes, so TCEQ's whole-water approach follows its rules as written.
TCEQ's final order granting the City of Dripping Springs a wastewater discharge permit did not need a separate statement of underlying facts, because its findings are not set out in statutory language and Save Our Springs did not preserve the complaint.

23-0644·Petition For Review

A landowner has standing to seek a declaratory judgment under Government Code § 2001.038(a) that an agency licensing rule does not apply to it where the agency threatens a fine under the rule, because a declaration of inapplicability would redress that threatened loss.
A suit asking whether a rule applies to the plaintiff at all is a proper "applicability" challenge that waives sovereign immunity, and it is not defeated because the court of appeals thought the rule plainly applies or because an administrative proceeding is pending.

24-0116·Certified Question

Under TCEQ's definition of "best available control technology," a pollution control method "has proven to be operational" when real-world experience and research have demonstrated that it is operational, obtainable and capable of reducing emissions; it need not currently operate under a TCEQ permit, and it does not include methods TCEQ merely deems capable of operating in the future.
A permit previously issued to one facility does not by itself establish best available control technology for later, similar facilities; the statute requires only that a proposed facility use at least the best available control technology, considering technical practicability and economic reasonableness.

25-0564·Petition For Review

When the Commission denies a contested-case hearing on an air permit without holding any evidentiary hearing, may it weigh and resolve disputed facts about the permit's effects against the requesters, and is its affected-person decision reviewed for substantial evidence?
If the requesters were denied a contested-case hearing, may a court still review the merits of the minor-source air permit, or does the Clean Air Act and exhaustion doctrine make participation in a contested-case hearing a prerequisite to judicial review?