From the Editors

With this Journal, you now have Issue Number One of the 2008-2009 publication year.  As we noted previously, our actual publication dates are spilling over into following years.  Our goal is to “catch up” during Volumes 39 and 40.

In our lead article, Christopher R. Brown and Blake Farrar examine the Eastland Court of Appeals decision in City of Aspermont v. Rolling Plains Groundwater Conservation District and its impact on the ability of groundwater conservation districts to regulate municipalities and on the State’s groundwater management policies.  The authors state that the Aspermont decision deprives Texas groundwater districts of a critical enforcement power against municipalities: the threat of litigation for damages if a city refuses to comply with the district’s regulations.  The Aspermont decision also weakens the “graduated sanctions” available to a groundwater district when a new system of groundwater regulation with real restrictions on groundwater production will increase the probability of non-compliance.  The Aspermont decision demonstrates that Texas has not yet achieved another feature of effective groundwater regulation: efficient local mechanisms for conflict resolution.  In successful common pool resource regulatory systems, the users typically recognize that their behavior is destroying the resource, at which point they agree to different rules of use and set up a system to enforce them.  In Texas, other attitudes also drive the decision to form a groundwater district: the fear of state regulation and the desire to enact rules that preserve individual autonomy over groundwater use.  This attitude may account for survey results that indicate a number of districts that seldom take enforcement actions even when faced with a number of violations.  A number of districts take their regulatory responsibilities seriously as indicated by the number of districts that do engage in enforcement actions.  The authors conclude that Texas needs to provide groundwater districts with clear and credible enforcement mechanisms, which means, in part, that the Texas Legislature needs to draft groundwater statutes that unambiguously confer enforcement power on local districts.

In the student note in this issue, Kelly Davis examines the effect of courts levying attorney fees against citizen groups on the public policy allowing citizen suits.  Federal and state governments allow private law enforcement actions as a means of obtaining statutory objectives of environmental laws.  Public interest organizations have used these citizen suit provisions to promote the public good by requesting court orders that require compliance and penalize violators.  These suits comport with Congress’ stated intent to “extend the concept of public participation to the enforcement process.”  However, the future of these actions is uncertain, as courts have begun punishing unsuccessful plaintiffs by awarding attorney fees to prevailing defendants in citizen actions.  Because the majority of these actions are brought by non-profit and citizen groups, the substantial burden of paying high attorney fees can produce far-reaching negative consequences.  What is now a powerful incentive for groups with limited resources to take action in the public interest threatens to become a potent disincentive.  To take the language from the very statute these litigants employ in promoting the public interest and use it as fodder for awarding attorney fees against them is to twist the spirit of the environmental statutes.  With the threat of citizen enforcement actions effectively eviscerated, the enforcement powers are diluted, and polluters may continue to degrade the environment.  Thus, Ms. Kelley posits that it is crucial that courts maintain a policy that does not foreclose citizen actions, before the “Davids are rendered helpless against the Goliaths.”

In the next issue of the Journal, Jeffrey S. Boyd will discuss “Where Sovereign Immunity and Water Development Issues Collide” in the lead article.  The student note, by Will Ikard, will discuss “Encouraging Conservation in the Lone Star State: How Texas Can Improve Incentives for Landowners to Preserve Private Property from Development.”

As always, we hope that this issue provides you with educational insight and substance for discussion.

Jimmy Alan Hall
Editor-in-Chief

Courtney Davis
Student Editor-in-Chief (2008-2009)

Selena Saucedo
Managing Editor (2008-2009)

Holley Simons
Lead Article Editor (2008-2009)

Margaret Meador
Student Note Editor (2008-2009)

Kelly Davis
Recent Developments Editor (2008-2009)

Beckie Brice
Student Editor-in-Chief (2009-2010)

Elizabeth Hundt
Managing Editor (2009-2010)

Russell Murdock
Administrative Editor (2009-2010)

William “Trey” Edwards
Lead Article Editor (2009-2010)

Adrian Shelley
Student Note Editor (2009-2010)

Crystal Le
Recent Developments Editor (2009-2010)