Shrimpers & Fishermen RGV v. Tex. Comm'n on Envtl. Quality

• Decision Date: 31 July 2020
• Docket Number: No. 19-60558,19-60558
• Parties: SHRIMPERS AND FISHERMEN OF the RGV; Vecinos Para el Bienestar de la Comunidad Costera, Petitioners, v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY; Jon Niermann, in his official capacity as Chairperson of the Texas Commission on Environmental Quality, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

968 F.3d 419

SHRIMPERS AND FISHERMEN OF the RGV; Vecinos Para el Bienestar de la Comunidad Costera, Petitioners,

v.TEXAS COMMISSION ON ENVIRONMENTAL QUALITY; Jon Niermann, in his official capacity as Chairperson of the Texas Commission on Environmental Quality, Respondents.

No. 19-60558

United States Court of Appeals, Fifth Circuit.

FILED July 31, 2020

Erin Laurel Gaines, Attorney, Texas RioGrande Legal Aid, Incorporated, Austin, TX, David O'Brien Frederick, Attorney, Frederick, Perales, Allmon & Rockwell, Austin, TX, Hannah Elizabeth Samson, Texas RioGrande Legal Aid, Incorporated, Del Rio, TX, Enrique Porrata Valdivia, Attorney, Texas RioGrande Legal Aid, Incorporated, San Antonio, TX, for Petitioners

Mark Andrew Steinbach, Assistant Attorney General, Office of the Attorney General of Texas, Environmental Protection Division, Austin, TX, Toby Baker, Executive Director, Texas Commission on Environmental Quality, Environmental Law Division, Austin, TX, Linda B. Secord, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Respondents

Beth Bivans Petronio, Esq., Trial Attorney, K & L Gates, L.L.P., Dallas, TX, Theodore J. Angelis, K & L Gates, L.L.P., Seattle, WA, for Intervenor

Before HAYNES and OLDHAM, Circuit Judges, and HANEN,^* District Judge.

PER CURIAM:

The Texas Commission on Environmental Quality ("TCEQ") granted certain air permits to Rio Grande LNG. Petitioners ask us to vacate TCEQ's decision and order either (1) a contested-case hearing before the Texas State Office of Administrative Hearings ("SOAH") or (2) the denial of the permits. It is unclear what source of law authorizes Petitioners to seek direct review of TCEQ's decision in our court. But we need not address that question because we hold that Petitioners lack Article III standing. See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 93–94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). We dismiss the petition.

I.

A.

The Clean Air Act, 42 U.S.C. §§ 7401 – 7671q, combines federal and state regulation to maintain and improve the nation's air quality. At the federal level, the Environmental Protection Agency ("EPA") identifies pollutants that endanger public health. Id. § 7408. It then establishes maximum permissible concentrations of those air pollutants, known as the National Ambient Air Quality Standards ("NAAQS"). Id. § 7409.

Though EPA establishes the NAAQS, the States have the primary responsibility for implementing them. States must submit to EPA State Implementation Plans specifying how they will attain and maintain the NAAQS. Id. § 7407(a). Those plans must provide for New Source Review of the construction and modification of certain stationary sources of air pollution.

Id. § 7410(a)(2)(C). New "major" sources of air pollution—such as the one proposed by Rio Grande LNG—must satisfy the requirements for Prevention of Significant Deterioration of air quality. Id. § 7475(a).

In Texas, TCEQ is responsible for conducting New Source Review and deciding whether to issue air-quality permits for proposed facilities. See TEX. HEALTH & SAFETY CODE § 382.051. The Clean Air Act requires States to give the public an opportunity to participate in permitting decisions through the submission of written comments and presentation of oral statements at a public hearing. 42 U.S.C. § 7475(a)(2). Texas exceeds these requirements by giving TCEQ the discretion to hold contested-case hearings before SOAH.¹ See TEX. HEALTH & SAFETY CODE § 382.056(n) (incorporating TEX. WATER CODE § 5.556 ). A contested-case hearing is a trial-like "proceeding ... in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearing." TEX. GOV'T CODE § 2001.003(1). Contested-case hearings on permitting decisions are limited in scope to "disputed question[s] of fact" that were "raised during the public comment period" and are "relevant and material to the decision on the application." TEX. WATER CODE § 5.556(d). If TCEQ calls for a contested-case hearing, a SOAH administrative law judge will conduct the hearing and prepare a "proposal for decision to the commission." TEX. GOV'T CODE § 2003.047(e). The final decision rests with TCEQ, which can adopt, reject, or amend the proposal. Id. § 2003.047(l ) – (m).

TCEQ "may not grant a request for a contested case hearing unless the commission determines that the request was filed by an affected person as defined by Section 5.115 [of the Texas Water Code]." TEX. WATER CODE § 5.556(c). An "affected person" is "a person who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the administrative hearing." Id. § 5.115(a). An "interest common to members of the general public does not qualify as a personal justiciable interest." Ibid.

These criteria bear some resemblance to Article III's familiar injury-infact requirement. But there are also key differences. In 2015, the 84th Texas Legislature passed and Governor Greg Abbott signed Senate Bill 709. That bill added a provision to the Texas Water Code stating that TCEQ may consider "the merits of the underlying application" and "the analysis and opinions of the executive director" of TCEQ in determining whether someone is an affected person. Id. § 5.115(a-1).

Section 5.115(a-1) also states that TCEQ may not find that "a group or association is an affected person unless the group or association identifies, by name and physical address in a timely request for a contested case hearing, a member of the group or association who would be an affected person in the person's own right." Id. § 5.115(a-1)(2). And it instructs TCEQ to "adopt rules specifying factors which must be considered in determining whether a person is an affected person." Id. § 5.115(a-1); see also 30 TEX. ADMIN. CODE § 55.203 (specifying factors).

Once TCEQ has made a final decision, the Texas Clean Air Act provides that a "person affected by a ruling, order, decision, or other act of the commission ... may appeal the action by filing a petition in a district court of Travis County." TEX. HEALTH & SAFETY CODE § 382.032(a). "The petition must be filed within 30 days" of the action from which the petitioner is appealing. Id. § 382.032(b). Filing a timely petition "is a jurisdictional requirement," and "dismissal" is the "necessary consequence" of filing an untimely petition. AC Interests, L.P. v. TCEQ , 543 S.W.3d 703, 709 (Tex. 2018). Neither the federal Clean Air Act nor the Texas Clean Air Act says anything about filing a petition for review of TCEQ's decision in this court.

B.

The Petitioners in this case are two membership organizations: Shrimpers and Fishermen of the RGV ("Shrimpers") and Vecinos Para el Bienestar de la Comunidad Costera ("Vecinos"). They oppose Rio Grande LNG's plans to construct a natural gas liquefaction facility, export terminal, and pipeline near Brownsville, Texas. Petitioners submitted a comment to TCEQ asking for a contested-case hearing on Rio Grande LNG's application for air-quality permits. In the alternative, they asked TCEQ to deny the permits. TCEQ rejected both requests and granted Rio Grande LNG the permits. Petitioners filed a motion for rehearing, which TCEQ denied.

Petitioners filed a state-court lawsuit seeking vacatur of TCEQ's decision and either a contested-case hearing or a denial of the permits. Plaintiffs’ Original Petition, Shrimpers & Fishermen of the RGV v. TCEQ , No. D-1-GN-19-001306, 2019 WL 1209098 (250th Dist. Ct., Travis County, Tex. Mar. 12, 2019). The state suit alleged that TCEQ erred in granting the permits and that Petitioners were "affected persons" entitled to request a contested-case hearing under Texas law.

While the state case was pending, Petitioners filed a petition for review in our court. Like the state lawsuit, this suit alleges that TCEQ erred in granting air-quality permits to Rio Grande LNG and that Petitioners were "affected persons" entitled to request a contested-case hearing under Texas law. Petitioners also asked us for the same relief they requested in state court. Given the unusual posture of this case—a petition seeking direct review of a state agency's decision in the Fifth Circuit—we asked Petitioners to submit a letter brief explaining what source of law provided them with a cause of action.

II.

We need not decide whether Petitioners have a cause of action because they do not have standing. A petitioner who seeks judicial review of agency action invokes federal jurisdiction and therefore "bears the burden of establishing" Article III standing. Ctr. for Biological Diversity v. EPA , 937 F.3d 533, 536 (5th Cir. 2019) (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). We agree with our sister circuits that in direct appellate review of a final agency action, "the petitioner carries a burden of production" with respect to standing that is "similar to that required at summary judgment." Sierra Club v. EPA , 793 F.3d 656, 662 (6th Cir. 2015) ; see also Ga. Republican Party v. SEC , 888 F.3d 1198, 1201 (11th Cir. 2018) ; N. Laramie Range Alliance v. FERC , 733 F.3d 1030, 1034 (10th Cir. 2013) ; Iowa League of Cities v. EPA , 711 F.3d 844, 869–70 (8th Cir. 2013) ; Citizens Against Ruining the Env't v. EPA , 535 F.3d 670, 675 (7th Cir. 2008) ; Sierra Club v. EPA , 292 F.3d 895, 899–901 (D.C. Cir. 2002). This means that a petitioner's claim of standing cannot rest on "mere allegations," but must instead be supported by citations to specific facts in the record.

Clapper v. Amnesty Int'l USA , 568 U.S. 398, 412, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ).

The familiar elements of standing are (1) an injury in fact, (2) that is fairly traceable to the challenged conduct of the respondent, and (3) that is likely to be redressed by a favorable judicial decision. See Ctr. for Biological Diversity , 937 F.3d...