Coastal Habitat v. Public Utility Com'n

• Decision Date: 08 July 2009
• Docket Number: No. 03-08-00205-CV.,03-08-00205-CV.
• Parties: COASTAL HABITAT ALLIANCE, Appellant v. PUBLIC UTILITY COMMISSION OF TEXAS; Barry T. Smitherman, Chairman; Kenneth W. Anderson, Jr., Commissioner; Donna L. Nelson, Commissioner; Texas Gulf Wind LLC; PPM Energy, Inc.; and AEP Texas Central Company, Appellees.
• Court: Texas Court of Appeals

294 S.W.3d 276

COASTAL HABITAT ALLIANCE, Appellant v. PUBLIC UTILITY COMMISSION OF TEXAS; Barry T. Smitherman, Chairman; Kenneth W. Anderson, Jr., Commissioner; Donna L. Nelson, Commissioner; Texas Gulf Wind LLC; PPM Energy, Inc.; and AEP Texas Central Company, Appellees.

No. 03-08-00205-CV.

Court of Appeals of Texas, Austin.

July 8, 2009.

Catherine J. Webking, Attorney & Counselor at Law, Austin, TX, James B. Blackburn, Jr., Blackburn Carter, P.C., Houston, TX, for appellant.

John F. Williams, Patrick J. Pearsall, Marnie A. McCormick, Clark, Thomas & Winters, P.C., Thomas H. Watkins, Elizabeth G. (Heidi) Bloch, Christopher Hughes, Brown, McCarroll, L.L.P., Nathan M. Bigbee, Douglas Fraser, Assistant Attorneys General, Austin, TX, James H. Barkley, Karlene Poll, Macey Reasoner Stokes, Jason Ryan, Baker Botts, L.L.P., Houston, TX, for appellee.

Before Justices PATTERSON, PEMBERTON and WALDROP.

OPINION

G. ALAN WALDROP, Justice.

At issue in this case is the district court's subject-matter jurisdiction to review the Public Utility Commission's denial of a motion to intervene in a proceeding before the Commission. The Commission denied appellant Coastal Habitat Alliance's motion to intervene in the Commission's consideration of an electric utility's application to amend its certificate of convenience and necessity. The Alliance filed suit in district court in an attempt to appeal or challenge the order denying the request to intervene. The district court dismissed the Alliance's lawsuit for lack of subject-matter jurisdiction. We hold that the Administrative Procedure Act does not authorize a non-party such as the Alliance to independently pursue judicial review of a final order or decision of the Public Utility Commission. We also hold dismissal of the Alliance's claim for declaratory relief to be proper because, by statute, the denial of the Alliance's intervention was a matter committed to the Commission's discretion. Although a constitutional due process claim may be asserted by a non-party to an administrative proceeding, the Alliance has failed to allege the deprivation of a vested property right as a result of the denial of its intervention. We affirm the judgment of the district court.

Factual and Procedural Background

On June 25, 2007, appellee AEP Texas Central Company (AEP TCC) filed with the Public Utility Commission of Texas an application to amend its certificate of convenience and necessity (CCN) to construct, own, and operate a 21.6-mile, 345-kilovolt, double-circuit transmission line on Kenedy Ranch in Kenedy County. The transmission line is intended to interconnect two proposed wind generation facilities to be constructed on the ranch. On August 9, 2007, appellant Coastal Habitat Alliance filed a motion to intervene in the Commission's review of AEP TCC's application. The Alliance is an association of landowners and environmental groups formed for the purpose of protecting their environmental interests in the coastal region on which the transmission line would be located.¹ The motion to intervene alleged "adverse effects of this project on coastal wetlands, flora and fauna in the region, and endangered and migratory species."

The Commission denied the Alliance's motion to intervene on September 7, 2007, concluding that the Alliance had not shown a justiciable interest in the proceeding. The Alliance timely filed an appeal of the denial to the Commission, see 16 Tex. Admin. Code § 22.123(a)(2) (2009) (Pub. Util. Comm'n, Appeal of an Interim Order and Motions for Reconsideration of Interim Order Issued by the Commission), and the Commission issued a written order denying the appeal on October 29, 2007. The Alliance then filed a motion for reconsideration, see id. § 22.123(b), but no commissioner placed the motion on the agenda for an open meeting, causing the motion to be overruled by operation of law as of November 13, 2007, see id. § 22.123(b)(6)(A).

On November 27, 2007, the Commission issued a Notice of Approval granting AEP TCC's application to amend its CCN. On December 4, 2007, the Alliance filed suit in district court against the Commission, as well as Chairman Barry T. Smitherman and Commissioners Julie C. Parsley and Paul Hudson in their official capacities,² seeking reversal of the order denying its motion to intervene and seeking to vacate the administrative approval of the underlying CCN based on the claim that the denial of the Alliance's request to intervene was improper. In its original petition, the Alliance asserted that the denial of its intervention violated the Texas Utility Code and the Alliance's right to due process and due course of law, and sought declaratory relief under the Administrative Procedure Act, mandamus relief, and injunctive relief.³

By agreement among the parties, a hearing on the merits was set for March 5, 2008, in the district court. On February 21, 2008, AEP TCC and the Commission filed pleas to the jurisdiction seeking dismissal of the lawsuit. On March 4, 2008, the Alliance filed a response to the pleas to the jurisdiction, and filed a motion for leave to file an amended petition, by which the Alliance sought to add a claim for relief under the Uniform Declaratory Judgments Act as an additional basis for declaratory relief. Following the March 5 hearing on these pre-trial motions, the district court, on March 6, 2008, denied the Alliance's motion to amend its original petition, granted the pleas to the jurisdiction, and dismissed the Alliance's lawsuit. Coastal Habitat Alliance appeals.

Analysis

A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of a specific cause of action. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000). Whether a court has subject-matter jurisdiction and whether a plaintiff has alleged facts that affirmatively demonstrate subject-matter jurisdiction are questions of law that we review de novo. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). In deciding a plea to the jurisdiction, we are not to weigh the merits of the plaintiff's claims beyond the extent necessary to determine jurisdiction, but are to consider the plaintiff's pleadings, construed in the plaintiff's favor, and evidence pertinent to the jurisdictional inquiry. Id. at 227-28; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

In this lawsuit, Coastal Habitat Alliance seeks judicial review of the Commission's interlocutory order denying the Alliance's motion to intervene. "It is well recognized under Texas law that there is no right to judicial review of an administrative order unless a statute provides a right or unless the order adversely affects a vested property right or otherwise violates a constitutional right." Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex.2000) (citing Stone v. Texas Liquor Control Bd., 417 S.W.2d 385, 385-86 (Tex. 1967)). The Alliance argues that it has a right to judicial review based on (1) the Administrative Procedure Act, (2) the Uniform Declaratory Judgments Act, and (3) the constitutional right of due process and due course of law.

Administrative Procedure Act

The Alliance has a right to judicial review of an administrative order if a statute provides that right. See id. The Alliance asserts that the Administrative Procedure Act (APA)⁴ gives the district court jurisdiction over the Alliance's lawsuit that amounts to an appeal of the denial of its request to intervene. Section 2001.171 of the APA states as follows: "A person who has exhausted all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter." Tex. Gov't Code Ann. § 2001.171 (West 2008). The Texas Supreme Court has held that section 2001.171 provides an independent right to judicial review of a decision in a contested case. See Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 173 (Tex.2004). However, the supreme court limited its holding to situations in which the agency's enabling statute "neither specifically authorizes nor prohibits judicial review of the decision." Id.

The Public Utility Regulatory Act (PURA)⁵ specifically authorizes review of decisions by the Commission. Section 15.001 of the PURA provides that "[a]ny party to a proceeding before the commission is entitled to judicial review under the substantial evidence rule." Tex. Util.Code Ann. § 15.001 (West 2007). However, the Alliance was not a party to the Commission's review of AEP TCC's application because the Alliance's attempt to intervene was denied. The APA defines a "party" as "a person or state agency named or admitted as a party." Tex. Gov't Code Ann. § 2001.003(1) (West 2008). The Alliance was neither named nor admitted as a party. The Commission's rules reach the same result, providing that parties to a proceeding include applicants and complainants, respondents, intervenors, and commission staff representing the public interest, see 16 Tex. Admin. Code § 22.102(a) (2009) (Pub. Util. Comm'n, Classification of Parties), but "[a]ny person that has not intervened in a proceeding, or who has been denied permission to intervene shall not be considered a party," id. § 22.102(c). The Alliance was not allowed to intervene. Therefore, the PURA specifically authorizes judicial review of a proceeding before the Commission, but in a manner that excludes an entity—such as the Alliance—who is not a party to the proceeding.

Based on the supreme court's holding in Mega Child Care—that APA section 2001.171 provides an independent right to judicial review in situations in which the agency's enabling statute "neither specifically authorizes nor prohibits judicial review of the decision," see 145 S.W.3d at 173—this Court has held that an independent right to judicial review under the APA applies only "when the...