Coastal Habitat Alliance v. Patterson

• Decision Date: 30 September 2008
• Docket Number: Cause No. A-07-CA-985-LY.
• Citation: 601 F.Supp.2d 868
• Parties: COASTAL HABITAT ALLIANCE, Plaintiff, v. Jerry PATTERSON, In his Official Capacity as Commissioner of the Texas General Land Office; Chairman Barry Smitherman, Julie Carruthers Parsley, and Paul Hudson, In their Capacities as Commissioners of the Texas Public Utility Commission; Texas Gulf Wind, LLC, Wholly Owned by Babcock & Brown Renewable Holdings, LLC; and Iberdrola Renewables, Inc.,<SMALL><SUP>1</SUP></SMALL> Defendants.
• Court: U.S. District Court — Western District of Texas

Page 868

601 F.Supp.2d 868

COASTAL HABITAT ALLIANCE, Plaintiff, v. Jerry PATTERSON, In his Official Capacity as Commissioner of the Texas General Land Office; Chairman Barry Smitherman, Julie Carruthers Parsley, and Paul Hudson, In their Capacities as Commissioners of the Texas Public Utility Commission; Texas Gulf Wind, LLC, Wholly Owned by Babcock & Brown Renewable Holdings, LLC; and Iberdrola Renewables, Inc.,¹ Defendants.

Cause No. A-07-CA-985-LY.

United States District Court, W.D. Texas, Austin Division.

September 30, 2008.

Charles W. Irvine, James B. Blackburn, Jr., Mary W. Carter, Blackburn Carter, P.C., David A. Kahne, Law Office of David A. Kahne, Houston, TX, for Plaintiff.

Frank A. King, Attorney General of Texas, Shelley Dahlberg, Office of the Attorney General, Austin, TX, for Jerry Patterson.

Douglas B. Fraser, Nathan Myrick Bigbee, Attorney General's Office, Austin, TX, for Barry Smitherman, Julie Carruthers Parsley, Paul Hudson.

Christopher Hughes, Marianne Carroll, Rachel Lynn Noffke, Thomas H. Watkins, Brown McCarroll LLP, Virginia Katherine Hoelscher, Office of the Attorney General of Texas, Opinion Committee, Austin, TX, for Texas Gulf Wind, LLC.

Allison L. Bowers, David Savage, Sara M. Burgin, Stacy Rogers Sharp, Baker Botts LLP, Austin, TX, James H. Barkley, William Karl Kroger, Baker Botts LLP, Houston, TX, for PPM Energy, Inc.

MEMORANDUM OPINION AND ORDER GRANTING MOTIONS TO DISMISS

LEE YEAKEL, District Judge.

Before the Court are PUC Commissioners' Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) and Brief in Support filed December 21, 2007 (Clerk's Document 13), Texas Gulf Wind LLC and PPM Energy, Inc.'s Joint Motion to Dismiss and Supporting Brief filed December 26, 2007 (Clerk's Document 16), Commissioner Patterson's Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) and Brief in Support filed January 11, 2008 (Clerk's Document 23), Plaintiff's Consolidated Response to Defendants' Motions to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) filed January 23, 2008 (Clerk's Document 27), Commissioner Patterson's Reply Brief in Support of his Motion to Dismiss filed February 4, 2008 (Clerk's Document 34), PUC Commissioners' Reply to CHA's Response to Motions to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) filed February 4, 2008 (Clerk's Document 35), Texas Gulf Wind LLC and PPM Energy, Inc.'s Joint Reply in Support of their Motion to Dismiss filed February 4, 2008 (Clerk's Document 36), Plaintiffs Consolidated Sur-Reply to Defendants' Motions to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) filed March 3, 2008 (Clerk's Document 44), and Texas Gulf Wind LLC's Supplemental Brief on the Motion to Dismiss filed May 27, 2008 (Clerk's Document 70). The Court conducted a hearing on the motions to dismiss on June 3, 2008. Having considered the motions and related documents, the arguments of counsel, the record in this cause, and the applicable law, the Court will grant the motions to dismiss because the Court finds Coastal Habitat Alliance ("Alliance") lacks standing to bring its claims against Defendants.

I. Background and Statutory Scheme²

Defendants Texas Gulf Wind, LLC and Iberdrola Renewables, Inc. (collectively, the "Private Defendants") are building wind-energy-generation facilities ("wind farms") in Kenedy County, Texas, on land adjoining the Laguna Madre.³ The area encompasses biologically diverse expanses of undeveloped land through which three major migratory-bird pathways converge. Plaintiff Coastal Habitat Alliance states it is an alliance of area ranchers and organizations dedicated to protecting the Laguna Madre and its associated environmental resources.⁴ Coastal Habitat Alliance filed suit against the Private Defendants; Jerry Patterson, in his capacity as Commissioner of the Texas General Land Office; and Chairman Barry Smitherman, Julie Carruthers Parsley, and Paul Hudson in their capacities as Commissioners of the Texas Public Utility Commission ("Commission") (collectively, "State Defendants"). The Alliance alleges it has been deprived of its rights under the Coastal Zone Management Act ("Act") and the Texas Coastal Management Program ("Texas Program" or "Program"), in violation of the United States Constitution's Supremacy Clause and the Due Process Clauses of the Fifth and Fourteenth Amendments. See U.S. Const. art. VI, cl. 2; amends. V, XIV, § 1; 42 U.S.C. § 1983 ("Section 1983"). The Alliance seeks declaratory and injunctive relief and attorney's fees. See 28 U.S.C. §§ 2201, 2202; 42 U.S.C. § 1988.

Congress enacted the Coastal Zone Management Act in 1972 after finding a need to improve management of the nation's coastal zones. 16 U.S.C. § 1451 et seq. The Act encourages states to exercise their full authority over land and water in their coastal zones by offering the states financial and technical assistance to develop coastal-zone-land-and-water-use programs. Id. § 1451(i); § 1455(a), (c); §§ 1455a-1456b (financial assistance); § 1455a(f); § 1455b(b)(4), (d) (technical assistance). A state can avail itself of the Act's opportunities by developing a management program approved by the Secretary of Commerce ("Secretary"). Id. §§ 1454-1455. Before approving a state's management program, the Secretary must find the state's program was developed and adopted in accordance with Act requirements. Id. § 1455(d)(1). The Secretary must find the program contains Actrequired elements, including, inter alia, "a planning process for energy facilities likely to be located in, or which may significantly affect, the coastal zone, including a process for anticipating the management of the impacts resulting from such facilities." Id. § 1455(d)(2)(H). The Secretary may make financial grants to a coastal state only if the Secretary finds the state has created a management program that meets Act requirements. Id. § 1455(a)-(b).

A requirement for entry into this federal-state partnership is that a state, acting through its chosen agency or agencies, has authority for the management of the state's coastal zone in accordance with its management program. Id. § 1455(d)(10); 15 C.F.R. §§ 923.41-.44 (2008). The management program must include provisions to ensure appropriate protection of significant resources, such as wetlands. 15 C.F.R. § 923.3(b). Specifically, the state program must include a planning process for energy facilities located in, or which may significantly affect, the state's coastal zone. 16 U.S.C. § 1455(d)(2)(H). Energy facilities include electric-generating plants. Id. § 1453(6).

A state may use any of three techniques to control land and water uses in its coastal zone: (1) state establishment of criteria and standards for local implementation, (2) direct state land and water-use planning and regulation, or (3) state administrative review for consistency with the state's management program of all projects proposed by entities, including private developers, with power to approve or disapprove after public notice and opportunity for hearing.⁵ Id. § 1455(d)(11)(A)-(C). The state program must provide for public participation in permitting processes, consistency review, and other similar decisions. Id. § 1455(d)(14). For energy facilities, a state's program must provide procedures for assessing the suitability of sites and identification of how interested and affected parties will be involved in the planning process. 15 C.F.R. § 923.13(a)-(d).

Texas proposed a coastal-management program to the Secretary in 1995. The Office of Ocean and Coastal Resource Management, within the National Oceanic and Atmospheric Administration of the Department of Commerce, reviewed Texas's proposed program and prepared the Texas Program documents.⁶ See Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration, Department of Commerce & Coastal Coordination Council, State of Texas, Final Environmental Impact Statement, at iii (August 1996) ("Texas CMP FEIS") ("It is the general policy of the Federal Office of Ocean and Coastal Resource Management (OCRM) to issue combined environmental impact statements and program documents.").

The Texas Program designates the General Land Office as its lead agency. Texas CMP FEIS, Part II, at 3-5; see 16 U.S.C. § 1455(d)(6); 15 C.F.R. § 923.47. The Program is networked to combine the expertise and resources of eight state agencies, eighteen local governments, and the Coastal Coordination Council. Texas CMP FEIS, Part I, at 4; see generally 16 U.S.C. § 1455(d)(11)(C). The Coastal Coordination Council consists of the heads of Texas's resource agencies and four gubernatorial appointees and is responsible for, inter alia, "program oversight and dispute resolution through the state consistency review procedures ...," and monitoring Program agencies to assure their compliance with the Program. Texas CMP FEIS, Part I, at 6; Part II, at 3-7. The General Land Office's Coastal Division staffs the Coastal Coordination Council and coordinates implementation of the energy-facility siting plan. Id., Part II, at 3-5 to 3-6.

The Texas Program provides a framework for ensuring that new electric-generating facilities do not harm the environment. First, the Texas Program establishes policies for managing the siting, construction, and maintenance of electric-generating facilities and electric-transmission lines. Id. at 1-7. The Program includes an "enforceable policy" of siting new electricgenerating facilities at previously developed sites. Id., Part II, at 4-6; 31 Tex. Admin. Code Ann. § 501.16(1). Enforceable policies are "[s]tate policies which are legally binding through constitutional provisions, laws, regulations, land use plans, ordinances, or judicial or administrative decisions...." 16 U.S.C. § 1453(6a). In siting facilities at undeveloped sites, the Texas Program policy is to avoid construction in critical areas and to locate facilities at sites selected to have the least adverse effects practicable...