BCCA Appeal Grp., Inc. v. City of Hous.

• Decision Date: 29 April 2016
• Docket Number: NO. 13–0768,13–0768
• Parties: BCCA Appeal Group, Inc., Petitioner, v. City of Houston, Texas, Respondent
• Court: Texas Supreme Court

496 S.W.3d 1

BCCA Appeal Group, Inc., Petitioner,

v.City of Houston, Texas, Respondent

NO. 13–0768

Supreme Court of Texas.

Argued September 2, 2015

OPINION DELIVERED: April 29, 2016

Rehearing Denied September 23, 2016

Cristina Espinosa Rodriguez, Macey Reasoner Stokes, Matthew L. Kuryla, Baker Botts LLP, Houston TX, Evan Andrew Young, Baker Botts L.L.P., Austin TX, for Petitioner.

Aundrea Kristine Gulley, Kathy D. Patrick, Gibbs & Bruns LLP, Bertrand L. Pourteau II, Sr. Assistant City Attorney, David M. Feldman, Donna Lynn Edmundson, Houston City Attorney, Judith Lee Ramsey, Chief, General Litigation Section, Lynette Fons, Mary Beth Stevenson, Assistant City Attorney, City of Houston Legal Department, Robert W. Higgason, Senior Assistant City Attorney, Houston TX, for Respondent.

Ilan M. Levin, Arthur C. D'Andrea, Assistant Solicitor General, James D. Blacklock, Office of the Attorney General, Christina T. Wisdom, Wisdom Law, PLLC, C. Carrick Brooke-Davidson, Guida, Slavich & Flores, PC, James P. Sullivan, King & Spalding LLP, Austin TX, Rock Owens, Assistant Harris County Attorney, Vincent Reed Ryan, Jr., Harris County Attorney, Houston TX, for Amicus Curiae parties.

JUSTICE GREEN

delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE JOHNSON, JUSTICE WILLETT, JUSTICE GUZMAN, JUSTICE LEHRMANN, JUSTICE DEVINE, and JUSTICE BROWN joined, and in which Justice Boyd joined as to Parts III(B) and IV.

We must decide whether the Texas Clean Air Act (the Act) and the Act's enforcement mechanisms in the Texas Water Code preempt a Houston air-quality ordinance, and whether the Houston ordinance can incorporate Texas Commission on Environmental Quality (TCEQ) rules in their current form and as amended in the future. Because the Houston ordinance's enforcement provisions are inconsistent with the statutory enforcement requirements, and the ordinance's registration requirement makes unlawful what the Act approves, we reverse the judgment of the court of appeals as to preemption and render judgment for BCCA Appeal Group. However, we conclude that the ordinance's incorporation of TCEQ rules does not violate the nondelegation doctrine of the Texas Constitution and affirm the judgment of the court of appeals in that regard.

I. Background

In 1967, the Texas Legislature enacted the Act, which is now codified as Texas Health and Safety Code Chapter 382. Tex. Health & Safety Code §§ 382.001

–.510. The Act empowers the TCEQ to administer and enforce the Act. Id. § 382.011; TEX. WATER CODE §§ 5.001(2), .013(a)(11). To that end, the Legislature authorized the TCEQ to adopt rules for regulating air quality. Tex. Health & Safety Code § 382.017(a). The TCEQ has promulgated such rules. See 30 TEX. ADMIN. CODE §§ 1.1 –351.104.

Houston is a home-rule city. See, e.g., S. Crushed Concrete, LLC v. City of Hous., 398 S.W.3d 676, 678 (Tex.2013)

. In 1992, the City of Houston enacted an air-quality ordinance to regulate air pollution from facilities that were not already regulated under the Act. HOUSTON, TEX., ORDINANCE 1992–180 (Feb. 19, 1992) (codified as Ordinance § 21–164). Initially, the City contracted and cooperated with the TCEQ to ensure that TCEQ-permitted emissions sources within the City's borders complied with state law. The City inspected emissions sources, referred enforcement cases to the TCEQ, and pursued civil enforcement pursuant to the Water Code. See TEX. WATER CODE § 7.351 –.360. The City's contract with the TCEQ ended in 2005, as did its cooperative arrangement with the TCEQ, because the City desired to enforce the Act and TCEQ rules on its own “due to what it perceive[d] to be TCEQ's lax enforcement efforts.”¹ 496 S.W.3d 1, 20 (Tex. App–Houston [1st Dist.] 2013, pet. granted). In 2007, the City amended the 1992 ordinance to establish its own air-quality regulatory-compliance program and adopted a fee schedule to fund the program. HOUSTON, TEX., ORDINANCE 2007–208 (Feb. 14, 2007) (amending Chapter 21 of the Code of Ordinances). The 2007 amendment expanded the 1992 ordinance's scope to include the regulation of facilities and sources subject to TCEQ regulation under the Act and made it “unlawful” to operate a facility inside the City's borders unless the facility was registered with the City. HOUSTON, TEX., CODE OF ORDINANCES ch. 21, art. VI, div. 2, § 21–162(a) (2007). Furthermore, the 2007 amendment incorporated specific TCEQ rules promulgated pursuant to the Act, rather than referring to “air pollution control laws and regulations” generally, as it had previously. Id.§ 21–164(a). Section 21–164, as amended in 2007, states that certain TCEQ rules are incorporated “as they currently are and as they may be changed from time to time.” Id.

BCCA Appeal Group members operate integrated chemical manufacturing plants and refineries in the Houston area. Those plants are extensively regulated by the TCEQ pursuant to the Act. See TEX. HEALTH & SAFETY CODE §§ 382.011

, .023, .051–.059. In February 2008, BCCA Appeal Group filed suit seeking a declaratory judgment that the 2007 amendment is invalid and unenforceable under the Act, the Water Code, and the Texas Constitution.² BCCA Appeal Group also sought an injunction against the 2007 amendment's enforcement. On May 7, 2008, while the suit was pending, the City passed an additional amendment to the air-quality ordinance, providing that a violation of the incorporated TCEQ rules “shall be unlawful.”³ HOUSTON, TEX., ORDINANCE 2008–414 (May 7, 2008). Such violation would be prosecuted in municipal court,⁴ with fines between $250 and $2,000 per day of violation. Id. § 21–164(c), (e), (f). Furthermore, the 2008 amendment made it an “affirmative defense to prosecution under this section that the prosecuted condition or activity has been: (1) Approved or authorized by the Act, state rule or state order; and (2) That the facility is in compliance with any such approval or authorization.” Id. § 21–164(d). BCCA Appeal Group amended its suit to include a challenge to the 2008 amendment. We refer to the 2007 and 2008 amendments collectively as “the Ordinance.”

BCCA Appeal Group and the City filed cross motions for traditional summary judgment. In March 2011, the trial court granted BCCA Appeal Group's motion and denied the City's motion, concluding that the Ordinance violates the Texas Constitution, is preempted by the Act, and is therefore unenforceable. As a result, the trial court granted BCCA Appeal Group's request for an injunction, enjoining the City from enforcing the Ordinance.

The court of appeals reversed the trial court's judgment and rendered judgment in favor of the City, concluding that the Ordinance was consistent with the Act and the Water Code and that the Ordinance did not violate the nondelegation doctrine of the Texas Constitution by incorporating TCEQ rules in such a way as to include future amendments. 496 S.W.3d at ––––13.

In this Court, BCCA Appeal Group asserts the same arguments as it did at the trial court regarding preemption and nondelegation. We first address whether the Ordinance is preempted by the Act and the Water Code. Subsequently, we address the nondelegation doctrine of the Texas Constitution and the Ordinance's incorporation of TCEQ rules.

II. Standard of Review

“When both parties move for summary judgment and the trial court grants one motion and denies the other, as here, we review both sides' summary judgment evidence and render the judgment the trial court should have rendered.” S. Crushed Concrete, LLC, 398 S.W.3d at 678

. Traditional summary judgment is proper when the movant establishes that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c).

A. Powers of a Home–Rule Municipality

Home-rule cities possess the power of self-government and look to the Legislature not for grants of authority, but only for limitations on their authority. TEX. LOC. GOV'T CODE § 51.072(a)

; Dall. Merch.'s & Concessionaire's Ass'n v. City of Dall., 852 S.W.2d 489, 490–91 (Tex.1993). The Texas Constitution mandates that no city ordinance “shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.” TEX. CONST. art. XI, § 5 (a). Therefore, a home-rule city's ordinance is unenforceable to the extent that it is inconsistent with the state statute preempting that particular subject matter. Dall. Merch.'s & Concessionaire's Ass'n, 852 S.W.2d at 491. “Of course, a general law and a city ordinance will not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached. In other words, both will be enforced if that be possible under any reasonable construction....” City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202, 206 (Tex.Com.App.1927). Furthermore, “[t]he entry of the state into a field of legislation ... does not automatically preempt that field from city regulation; local regulation, ancillary to and in harmony with the general scope and purpose of the state enactment, is acceptable.” City of Brookside Vill. v. Comeau, 633 S.W.2d 790, 796 (Tex.1982).

BCCA Appeal Group argues that the Ordinance is expressly preempted by section 382.113(b) of the Act and implicitly preempted by the comprehensive structure of the Act and its Water Code enforcement provisions. In Lower Colorado River Authority v. City of San Marcos,

we stated that “[a] limitation on the power of home rule cities by general law ... may be either an express limitation or one arising by implication,” but we have never delineated the distinction between the two. 523 S.W.2d 641, 645 (Tex.1975). Instead, we focus on whether the Legislature's intent to provide a limitation appears with “unmistakable clarity.”⁵

See, e.g.,

Dall. Merch.'s & Concessionaire's Ass'n, 852 S.W.2d at 491, 494

(stating “if the Legislature chooses to preempt a subject matter ... it must do so with unmistakable clarity,” and concluding “the express...