50-2 Archives - Texas ENRLS

Vol. 50-2 Water Rights

By Emily Williams Rogers, Kimberly Kelley and Patrick Maloney

Water Rights

Texas Flood-Controlled Reservoirs

Introduction

Houston is located at the junction of the Buffalo Bayou and the White Oak Bayou, which drains into the Galveston Bay. As a result, Houston has a history of flooding and is familiar with flooding hazards. In response, Congress created flood control measures with the Rivers and Harbors Act of 1938.[1] Through this Act, the U.S. Army Corps of Engineers (the Corps) built both Addicks and Barker Dams and connected them to the Buffalo Bayou as part of an extensive flood control effort.[2] The purpose of the program was to protect Houston as it existed at the time the law passed, namely downtown Houston and the areas nearby.

The city originally purchased substantial amounts of land upstream of the dams to create reservoirs to hold flood water.[3] While the Corps acquired a significant amount of upstream land, it acquired less than initially planned, meaning that “the dams were designed to contain more water than the acquired land could hold.”[4] The Corps diminished its land requirements based off a large 1935 storm, although the risk of a more significant storm was considered—approximately the size of Hurricane Harvey—that could occur once every fifty years.[5] However, the Corps expected that the rural areas surrounding the reservoirs would stay rural, therefore mitigating the potential risk posed by flooding.[6] Despite the Corps’ original expectations, rapid urbanization ensued, and by the late 1970s, the area upstream of the reservoirs were no longer rural.[7]

In 2017, Hurricane Harvey unexpectedly poured an average of thirty-four inches of water on Houston in four days.[8] The Corps followed its mandate and protected downtown Houston. Thus, the area upstream of the dams experienced significant flooding, causing extensive property damage.[9] According to the Corps, the dams functioned properly and per their original purpose.[10]

Upstream Addicks and Barker Takings Claims

With the wave of litigation against the Corps that followed, the cases were split between the upstream properties and the downstream properties.[11] This article analyzes upstream property owners’ cases who successfully argued that the Corps is liable for taking. Interestingly, the claims court found the downstream property owners did not own a protected property interest and therefore could not recover.

Takings derive from the Takings Clause of the Fifth Amendment, which states that “private property [shall not] be taken for public use without just compensation.”[12] The Takings Clause holds the government liable for negatively affecting the value of private property in exchange for a public purpose. There are two, layered elements to a takings analysis. The first element is whether the plaintiff has a property interest within the meaning of the Fifth Amendment.[13] The second element is whether the government’s action amounted to a compensable taking of that interest.[14]

Property Interest

The court began its analysis by noting that the homeowners own private property without flowage easements, ultimately concluding that the plaintiffs maintained a property interest within the meaning of the Fifth Amendment.[15] The Corps provided three reasons why the homeowners do not hold compensable property interests, all of which the court rejected. First, the Corps argued that under Texas law, it has the right to mitigate floodwaters.[16] The court disagreed, explaining that the law the Corps cited was an exception for the specific circumstance of constructing or maintaining levees, not for consciously diverting water onto private property.[17] Second, the Corps argued that the upstream homeowners purchased their property after the dams’ construction and therefore, cannot argue that they should be free from flooding.[18] The court disagreed, noting that this argument is more appropriate for analyzing the homeowners’ reasonable investment-backed expectations.[19] Third, the Corps argued that under the Flood Control Act of 1928, the homeowners’ right to compensation is limited. Again, the court disagreed, maintaining that the Flood Control Act did not override the Constitution’s requirement that the government compensate when it takes private property for public use.[20] With this analysis, the court established that the plaintiffs maintained a vested property interest under the Fifth Amendment.[21]

Takings

Whether government action requires compensation for taking requires considering six elements articulated by the Supreme Court in Arkansas Game and Fish Commission v. United States.[22] The factors include (1) time and duration, (2) intent, (3) foreseeability, (4) character of the land, (5) reasonable investment-backed expectations, and (6) severity.[23] The court addressed all factors except for the “character of the land.”

Time and Duration

The time factor is highly weighted. When the taking is permanent, then a taking is virtually conclusive.[24] The court shot down the Corps’ argument that its actions only temporarily took the homeowners’ properties since the floodwater dissipated within days.[25] Instead, the court concluded that the Corps’ history with the dams, including construction, maintenance, and operation, demonstrates that the Corps took a permanent flowage easement.[26] The court reasoned that ever since the dams’ construction, the Corps’ actions subjected the upstream homeowners to the “probability” that the Corps will induce flooding.[27] That is, the time and duration does not mean the duration of the flooding; rather it involved the government’s permanent right to inundate the property with floodwater. But the court did not address the fact that the homeowners purchased their property after the construction of the dams.

Severity

The court cited precedent holding that in “the flooding context, ‘property may be taken by the invasion of water where subjected to intermittent, but inevitably recurring, inundation due to authorized government action.’”[28] Flooding by means of flood control is defined as a taking when the government retains the right to flood it in the future, since reserving such a right is more than an “isolated invasion.” [29] It is essentially a flowage easement.[30] The Corps responded by arguing that each upstream property was repairable, and therefore, the damage was temporary.[31] Even if the properties are repairable, however, the court countered that the likelihood of a similar event in the future is determinative.[32] Some properties required months for repairs due to structural damage; furthermore, the fact that the owners can repair the property to its previous condition is irrelevant in a severity analysis, especially when the Corps may flood the property again.[33]

Intent

Intent is defined as whether the Corps intended to occupy the homeowners’ property without authority or excuse, meaning that intent to occupy is sufficient without requiring intent to create a taking.[34] The court drew on the Corps’ failure to purchase the proper amount of land to affect the dams’ original design requirements.[35] Even though the Corps knew it did not have enough land upstream of the dams to prevent flooding for a storm the size of Harvey, it also knew that a storm the size of Harvey was probable.[36] Moreover, even though the Corps knew that if a storm like Harvey would occur, it never strayed from the primary objective to prevent downstream flooding.[37] The Corps’ decision to prevent downstream flooding, then, showed its intent to use the upstream homeowners’ properties for flood control because it knew a storm like Harvey would occur.[38]

Foreseeability

The bulk of the court’s decision lies in its foreseeability analysis. Whether an invasion of private property is the foreseeable result of government action addresses whether the government intended to invade as the “direct, natural, or probable result of an authorized activity,” and not invasions incidental or consequential injuries from an action.[39] The distinction between intent and foreseeability is that the foreseeable result may not have been intended, but an action cannot be intended without being foreseeable.[40] As noted above, the court found intent, and therefore the taking was foreseeable.[41]

The court rejected two of the Corps’ important arguments. First, the Corps argued that the foreseeability analysis should focus on the time the Corps constructed the dams.[42] The Corps’ argument here focused on the fact that it could never have anticipated the vast urbanization that would occur in the late 20^th century, and that while the upstream flooding was possible, it was not the “direct, natural, or probable result.”[43] The court responded by saying that foreseeability “should not be so constrained” because foreseeability is an objective measurement.[44] The court asked, “would an objective person reasonably foresee that the actual results which occurred would have been the direct, natural or probably results of the government’s actions? Whether the Corps subjectively foresaw the results may bear on objective foreseeability, but it is not the only consideration.”[45] The court eventually concluded that measuring the date of foreseeability is irrelevant because the Corps objectively should have known that the water would invade private property.[46] Moreover, the Corps’ ongoing operation and modification of the dams occurred even as the possibility of flooding increased.[47]

The second notable argument focused on the extent of damages. The Corps argued that “the claimed losses were not the direct, natural, or probably result” since the Corps could not have anticipated the urbanization upstream of the dams.[48] Instead, the Corps said it should not be liable for damages to businesses and homes that did not exist in the 1940s.[49] The court cast the Corps’ argument aside and stated that unforeseeable urbanization is irrelevant.[50] Instead, the court focused on the fact that the Corps should have foreseen that when it did not purchase all of the required by the original project’s design, it effectively guaranteed a taking of private property via flooding easement.[51]

Reasonable Investment-Backed Expectations

Two factors are relevant to investment-backed expectations. First, the expectation must be objectively reasonable.[52] Second, the court must consider the extent that the Corps’ action interfered with reasonable expectations.[53] The court concluded that the homeowners’ expectations were reasonable, and notice does not immunize the government. Further, the court said that even if the various forms of notice were sufficient, the Corps did not show that the homeowners were aware of the scale of the risk.[54] Whether the Corps’ action interfered with reasonable expectations, the court concluded that the degree of interference was substantial.[55] Importantly, the court also noted that after Harvey, the Texas Legislature passed a statute mandating disclosure if a property is located in a reservoir.[56] An interesting question is whether such a disclosure would bar future claims of this sort by upstream homeowners.

Conclusion

The potential ramifications of this case are significant. In a world where the government necessarily has limited resources requiring it to make incremental decisions, this case appears to hold the government liable for the ripple effects of decisions made generations ago that were considered reasonable by the Corps at the time. The fact that the Corps knew at all times that it would need to flood private property eventually appears to be central to the court’s decision. The fact that landowners may have had notice of the potential for flooding was equally unpersuasive, with the court noting that the government cannot escape liability by simply notifying the landowner of a potential taking. The court reserved the question of damages for later proceedings.

Emily Williams Rogers is the Managing Partner of Bickerstaff Heath Delgado Acosta LLP and represents public and private clients in water rights, water quality, utility, and environmental law matters.

Kimberly Kelley is an attorney at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of municipal, open government, water, and environmental law. She earned her undergraduate degree from Texas A&M University and graduated Texas Tech University School of Law, where she served on the editorial board of the Law Review.

Patrick Maloney is a third-year student at The University of Texas School of Law and Articles & Notes Editor of the Texas Environmental Law Journal.

[1] In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs, 146 Fed. Cl. 219 (U.S. Ct. of Fed. Claims 2019).

[2] Id. at 230.

[3] Id. at 230–33.

[4] In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs, 146 Fed. Cl. 219, 230-33 (U.S. Ct. of Fed. Claims 2019).

[5] Id.

[6] Id. at 233.

[7] Id. at 256. In fact, a Corps’ report in 1974 stated, “Development of the area will eventually place the Government in the position of having to flood the area within the reservoir with the accompanying damages in order to protect downstream improvements in the event of a severe future storm.” Id.

[8] Id. at 227.

[9] Id. at 230.

[10] Id.

[11] Id.

[12] Id. at 247.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at 249.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] 568 U.S. 23 (2012).

[23] In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs, 146 Fed. Cl. at 248.

[24] Id. at 249–50.

[25] Id.

[26] Id.

[27] Id.

[28] Id. at 250. (citing Barnes v. United States, 538 F.2d 865, 870 (Ct. Cl. 1976)).

[29] Id. (citing U.S. v. Cress, 243 U.S. 316 (1917); Quebedeaux v. United States, 112 Fed. Cl. 317 (2013)).

[30] Id.

[31] Id. at 251.

[32] Id.

[33] Id.

[34] Id. at 254–60.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id. at 254–60.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id. at 254–60.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Id. at 260–63.

[53] Id.

[54] Id.

[55] Id.

[56] Id.

Vol. 50-2 Natural Resources

By Patrick Leahy and Neha Singh

Natural Resources

Rapanos and the New Definition of “Waters of the United States”

Introduction

The Clean Water Act (CWA) defines “navigable waters” as “the waters of the United States, including the territorial seas,” hereafter referred to as WOTUS.[1] Through the CWA, Congress directed the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) to protect “navigable waters.”[2] The Navigable Waters Protection Rule regulates these waters and the tributary systems that flow into them.[3] A clear definition of “waters of the United States” is necessary to determine the scope of federal jurisdiction over bodies of water and wetlands.[4] By redefining WOTUS, the rule restricts federal jurisdiction to only those waters that are sufficiently and visibly connected to traditionally navigable waters or seas.[5] This article discusses the reasoning behind the redefinition of WOTUS.

Background

The United States Supreme Court issued its opinion on WOTUS in Rapanos v. United States.^{^[6]} Justice Scalia, writing for a four-justice plurality, interpreted “waters of the United States” to include “only those relatively permanent, standing or continuously flowing bodies of water,” and only those wetlands with a “continuous surface connection” to jurisdictional bodies “so that there is no clear demarcation between ‘waters’ and wetlands.”^{^[7]} Essentially, the plurality held that an adjacent wetland is not within WOTUS just because that wetland has “a mere hydrologic connection” with the jurisdictional water.[8]

In his concurring opinion, Justice Kennedy took a different and broader interpretive approach. He stated that there is a “significant nexus” when tributaries or wetlands, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of traditionally covered bodies of water typically understood as navigable.[9] This created the “significant nexus” test, which originates from a combination of the Court’s decisions in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers and United States v. Riverside Bayview Homes, Inc.[10] The Court in SWANCC interpreted the Court’s decision in Riverside Bayview Homes as supporting a significant nexus theory: “it was the significant nexus between the wetlands and ‘navigable waters’ that informed [the Court’s] reading of the CWA in Riverside Bayview Homes.”[11] Rather than the surface-connection approach advanced by the plurality, Justice Kennedy articulated a test that gauges whether the wetlands that the EPA and the Corps’ seek to regulate have a significant enough negative impact on navigable waters.

But Justice Stevens—writing for the four-justice dissent—stated that the EPA and the Corps decided “that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation’s waters” and that EPA and the Corps’ decision “to treat these wetlands as encompassed within the term ‘waters of the United States’ is a quintessential example of the Executive’s reasonable interpretation of a statutory provision.”[12] The dissent declared that “waters” in “waters of the United States” is an ambiguous term, and the EPA and the Corps have “reasonably interpreted” federal jurisdiction to cover “nonisolated wetlands.”[13] Justice Stevens essentially eschewed a need for a separate test altogether, as long as federal jurisdiction over wetlands is reasonable under the CWA.

In 2015, in response to the Court’s interpretation of WOTUS in Rapanos, the EPA and the Corps provided a new basis for federal jurisdiction by applying Justice Kennedy’s “significant nexus” test in the clarifying document “Clean Water Rule: Definition of ‘Waters of the United States.’”^{^[14]} In support of Justice Kennedy’s test, the EPA and the Corps used the EPA’s “Connectivity Report,” a synthesis of 1,200 peer-reviewed articles on hydrologic connection.[15] According to the EPA and the Corps’ interpretation of the “significant nexus” test, waters under federal jurisdiction included ephemeral tributaries, their adjacent wetlands, and other waters that EPA and the Corps decided were jurisdictional using a categorical or case-by-case basis.[16] The 2015 Clean Water Rule addressed the major issue in Rapanos: can the connection between jurisdictional waters and adjacent wetlands be underground? The EPA and the Corps incorporated certain accepted scientific principles of hydrology into the definition of jurisdictional waters and rejected the surface-connection theory as stated by the plurality in Rapanos.[17]

Developments since Rapanos

In February 2017, President Trump issued an Executive Order directing the EPA and the Corps to conduct a rulemaking in order to redefine CWA jurisdiction “in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States.”^{^[18]} On October 22, 2019, the EPA and the Corps published a final rule to repeal the 2015 rule defining “waters of the United States.”[19] The final rule repealing the 2015 rule was published in the Federal Register on October 22, 2019, and became effective on December 23, 2019.^{^[20]}

On January 23, 2020, the EPA and the Corps finalized the new “Navigable Waters Protection Rule,” redefining WOTUS to comply with the president’s order, which became effective on June 22, 2020.[21] The final rule excludes from the definition of WOTUS, “groundwater, including groundwater drained through subsurface drainage systems; ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools” and “waste treatment systems,” among others.[22] More generally, the rule states that federal jurisdiction will be restricted to those waters and wetlands that “maintain a sufficient surface water connection to traditional navigable waters or the territorial seas.”[23] This is the end, for now, of the “significant nexus” test within the CWA. Rather than a hydrological or ecological connection, the only connection that will allow for federal regulation over other waters and wetlands is one that is surface level.

In the final rule, the EPA and the Corps assert that “ensuring that States and Tribes retain authority over their land and water resources […] helps carry out the overall objective of the CWA and ensures that the agencies are giving full effect and consideration to the entire structure and function of the Act.”[24] The EPA and the Corps cite Justice Scalia’s opinion in Rapanos in support: “clean water is not the only purpose of the statute. So is the preservation of primary state responsibility for ordinary land-use decisions.”[25] While clean water may not be the only purpose of the CWA, it is arguably the primary one. However, because the EPA and the Corps “recognize that science cannot dictate where to draw the line between Federal and State waters,” perhaps ensuring clean water through scientific processes has become less important.[26]

While this new rule recently became effective, how it is implemented will most certainly be influenced by the Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund interpreting Rapanos and establishing the “functional equivalent” test for indirect discharges into WOTUS.[27]

Patrick Leahy is an Associate at Baker Botts (Austin) and works on a variety of environmental litigation matters at the administrative, state, and federal levels, permitting, regulatory compliance, and transactional support matters.

Neha Singh is a second-year student at The University of Texas School of Law and a staff member of the Texas Environmental Law Journal.

[1] 33 U.S.C. §1362(7).

[2] Definition of “Waters of the United States” under the Clean Water Act, Envtl. Prot. Agency, https://www.epa.gov/cwa-404/definition-waters-united-states-under-clean-water-act (last visited Feb. 18, 2020).

[3] Id.

[4] See Solid Waste Agency of Northern Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134 (1985).

[5] The Navigable Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22,250 (Apr. 21, 2020) (to be codified at 33 C.F.R. pt. 328 and 40 C.F.R. pts. 110, 112, 116, 117, 120, 122, 230, 232, 300, 302, and 401).

[6] Rapanos v. United States, 547 U.S. 715 (2006).

[7] Id. at 739.

[8] Id. at 740.

[9] Id. at 780.

[10] See Solid Waste Agency of Northern Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134 (1985).

[11] SWANCC, 531 U.S. at 167 (2001).

[12] Rapanos, 547 U.S. at 788.

[13] Id. at 798.

[14] See Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,054 (June 29, 2015) (to be codified at 33 CFR pt. 328 and 40 CFR pts. 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401).

[15] Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, Envtl. Prot. Agency, https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414, (last visited May 22, 2020).

[16] Clean Water Rule, 80 Fed. Reg. at 37,056.

[17] Amy Kelly, Waters and Water Rights § 61.03 (Matthew Bender eds., 3rd ed. 2020).

[18] Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, White House (Feb. 28, 2017), https://www.whitehouse.gov/ presidential-actions/presidential-executive-order-restoring-rule-law-federalism-economic-growth-reviewing-waters-united-states-rule/.

[19] Definition of “Waters of the United States” under the Clean Water Act, U.S. Envtl. Prot. Agency, https://www.epa.gov/cwa-404/definition-waters-united-states-under-clean-water-act (last visited Feb. 18, 2020).

[20] Definition of “Waters of the United States”—Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019) (to be codified at 33 C.F.R. pt. 328 and 40 C.F.R. pts. 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401).

[21] Final Rule: The Navigable Waters Protection Rule, Envtl. Prot. Agency, https://www.epa.gov/nwpr/final-rule-navigable-waters-protection-rule (last visited Feb. 18, 2020); see Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, White House (Feb. 28, 2017) https://www.whitehouse.gov/presidential-actions/presidential-executive-order-restoring-rule-law-federalism-economic-growth-reviewing-waters-united-states-rule/.

[22] The Navigable Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22,250 (Apr. 21, 2020) (to be codified at 33 C.F.R. pt. 328 and 40 C.F.R. pts. 110, 112, 116, 117, 120, 122, 230, 232, 300, 302, and 401).

[23] Id. at 22,259.

[24] Id. at 22,320.

[25] Id.; Rapanos, 547 U.S. at 755–56.

[26] Navigable Waters Protection Rule, 85 Fed. Reg. at 22,292.

[27] Cty. of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020).

Vol. 50-2 State Casenote

By Stacie M. Dowell and Thomas Kagerer

State Casenote

State of Texas v. ITC

Introduction

The State of Texas, acting on behalf of the Texas Commission on Environmental Quality (TCEQ), recently brought suit against International Terminals Company, LLC (ITC) for violations of the Texas Clean Air Act, the Texas Water Code, the Texas Solid Waste Disposal Act, and TCEQ rules implementing those statutes.[1] These claims arise from chemical fires that occurred at ITC’s plant in Deer Park, Texas in March 2019.[2] The case is currently pending trial in the 261st District Court of Texas.[3] The decision to sue ITC immediately after the chemical fires occurred is notable because the state has not pursued environmental claims as aggressively in the past.[4]

Background

ITC owns and operates an independent storage facility for various petrochemical and chemical companies. According to ITC, one of their storage tanks caught fire on March 17, 2019 after a pipe began leaking naphtha, a flammable chemical distilled from petroleum.[5] This fire spread to several other tanks, and by March 19, 2019, ten of ITC’s tanks storing “naphtha and xylene (fuels used in gasoline and plastics), toluene (a volatile liquid used to make nail polish remover and paint thinner), pyrolysis gas, and blended oils” were ablaze.[6]

These fires resulted in “elevated levels of VOCs [Volatile Organic Compounds]” and the “release of several air contaminants including, but not limited to, PM_2.5, PM₁₀, benzene, NOx, toluene, and xylene.”[7] The air contaminants released by fires resulted in several school closures and two “shelter-in-place” orders, which required residents of Deer County and the surrounding areas to stay inside and avoid hazardous air quality in the area.[8]

After the fires were contained, a “secondary containment area at the Site—that collected a mixture of foam, firefighting water, and petrochemicals, including, but not limited to, toluene, benzene, xylene, and naphthalene—collapsed and resulted in a release of wastewater from the Site.”[9] The wastewater was released into a drainage ditch that feeds into Tucker Bayou and the Houston Ship Channel.[10]

Claims

The State of Texas alleges that the release of these air contaminants, water pollutants, and solid wastes violates TCEQ permits and rules. The State of Texas is seeking civil penalties for: (1) “Unauthorized Air Pollution at the Site,” (2) “Unauthorized Outdoor Burning at the Site,” (3) “Nuisance,” (4) “Unauthorized Visible Emissions,” (5) “Unauthorized Discharge of Wastewater,” and (6) “Unauthorized Discharge of Industrial Solid Waste and Hazardous Waste.”[11]

First, regarding the cause of action for unauthorized air pollution at the Site, the State of Texas alleges that “ITC caused, suffered, allowed, or permitted the emission of air contaminants from the Site in violation of Texas Health and Safety Code Section 382.085(a) and (b), and Texas Water Code section 7.101 each day from March 17, 2019, until at least March 22, 2019.”[12] These provisions restrict the emission of air contaminants to what the TCEQ authorizes or permits. The chemical fire caused levels of air contaminant emissions that exceeded ITC’s authorized levels.[13]

Second, regarding the cause of action for unauthorized outdoor burning at the Site, the State of Texas alleges that “ITC caused, suffered, allowed, or permitted outdoor burning at the Site in violation of Title 30 Texas Administrative Code Section 111.201 and Texas Water Code section 7.101 each day from March 17, 2019 until March 20, 2019, and on March 22, 2019.”[14] Similar to the first claim, ITC allegedly exceeded its permissible limits for outdoor burning during the chemical fires.[15]

Third, the State of Texas has brought a nuisance claim against ITC. Texas alleges that the emissions from the fires created a nuisance when they caused “fatigue, dizziness, and headaches from short-term exposure” in people near the plant both when the two “shelter-in-place” orders were issued on March 17 and March 21, 2019 and when various public and private schools were forced to close in the area.[16] The State of Texas claims that this nuisance was created “in violation of Title 30 Texas Administrative Code Section 101.4 and Texas Water Code Section 7.101.”[17]

Fourth, the State of Texas alleges that there were “Unauthorized Visible Emissions” as a result of the fires.[18] The State of Texas claims that a “large, dark emissions plume” was visible beyond the Site without a TCEQ permit.[19] As a result, Texas alleges that ITC “caused, suffered, allowed, or permitted unauthorized visible emissions at the Site in violation of Title 30 Texas Administrative Code Section 111.111 and Texas Water Code Section 7.101.”[20]

Fifth, the State of Texas alleges that ITC violated an important section of the Texas Water Code.

[U]nder section 26.121 (a) of the Texas Water Code, except as authorized by TCEQ, no person may: (1) discharge municipal, recreational, agricultural, or industrial waste into or adjacent to any water in the State: (2) discharge other waste into or adjacent to any water in the state which may cause pollution of the water; or (3) “commit any other act or engage in any other activity which in itself or in conjunction with any other discharge or activity causes, continues to cause, or will cause pollution of any of the water in the state.”[21]

The State of Texas alleges that ITC violated this provision when it discharged wastewater into a drainage ditch that feeds into Tucker Bayou and the Houston Ship Channel without a TCEQ permit. Therefore, the State of Texas alleges that “ITC has caused, suffered, allowed, or permitted the discharge of wastewater from the Site in the waters of the state in violation of Texas Water Code Sections 26.121 and 7.101.”[22]

Sixth, and related to the discharge of wastewater, the State of Texas alleges that ITC “caused, suffered, allowed, or permitted the continual disposal of hazardous waste from the Site in a manner that caused: (1) the discharge or imminent threat of discharge of industrial solid waste into or adjacent to the waters in the state; (2) the creation and maintenance of a nuisance; or (3) the endangerment of the public health and welfare, in violation of Title 30 Texas Administrative Code section 335.4 and Texas Water Code Section 7.101.”[23] The hazardous waste entered into the “Waters of Texas” when the on-site storage pond collapsed and discharged into Tucker Bayou.[24]

Finally, all of these causes of action seek damages under the same provision, Texas Water Code Section 7.102.[25] Section 7.102 provides that “the State is entitled to civil penalties against ITC within the statutory range of not less than $50 nor greater than $25,000 for each day of each violation alleged.”[26] Additionally, the State of Texas seeks injunctive relief against ITC for continuing violations of the Texas Clean Air Act, the Texas Water Code, the Texas Solid Waste Disposal Act, and regulations promulgated by TCEQ.[27] Furthermore, the State seeks “reasonable attorney’s fees, investigative costs, and court costs incurred in relation to this proceeding.”[28]

ITC has entered a “general denial to every allegation” and “demands that the plaintiff prove each allegation as applicable by law.”[29] Additionally, ITC has raised defenses “under the Eighth Amendment to the United States Constitution and Section 13. Article I of the Texas Constitution” as well as “the Fourteenth Amendment to the United States Constitution and by Section 19. Article I of the Texas Constitution,” stating that multiple claims for the same underlying event would impose excessive fines and violate due process protections.[30] The case is ongoing and awaiting trial in the 261st District Court of Texas.[31]

Enforcement Shift

Aside from being a disaster for both the State of Texas and ITC, this lawsuit is illustrative of a potential shift in enforcement against environmental violations. Emission events like this typically result in favorable settlements or non-enforcement of environmental statutes. For example, a report from Environment Texas concluded that from 2011 to 2017, less than three percent of emission events result in penalties.[32] Therefore, the decision to bring a suit against ITC so soon after the incident may be a signal that Texas is changing its enforcement procedures for environmental regulations.[33]

The State’s petition was filed on March 26, 2019, just days after the fires at the ITC plant had been extinguished.[34] This is markedly faster than several similar incidents in the past. For example, after a chemical explosion at a fertilizer plant in West, Texas in 2013, the State of Texas and the TCEQ never sued at all.[35] Instead, individual cities, counties, and victims of the incident brought the bulk of the lawsuits.[36] The State has been criticized for other instances of lax enforcement, including: waiting over a year to sue after a 2005 explosion at a British Petroleum oil refinery,[37] requesting that counties refrain from suing Volkswagen after it cheated on the EPA emissions tests,[38] and waiting roughly three years to sue BP after the notorious 2010 Deepwater Horizon incident.[39] The promptness of the ITC suit is a sharp contrast from previous enforcement and may be a harbinger of stricter enforcement.[40] However, some critics have described the enforcement against ITC as selective-enforcement against a lesser-known company rather than as a shift in policy.[41]

These concerns are informed by Ken Paxton’s record on environmental issues. Paxton has brought several suits on behalf of Texas against the EPA, such as opposing the Obama-era Clean Power Plan, challenging several ozone and sulfur oxide nonattainment determinations, and suing the EPA over regulations that aimed to cut methane emissions.[42] However, these are challenges against federal action rather than enforcement of state environmental statutes, and Mr. Paxton’s opinion on enforcement of Texas Environmental Law could still be in favor of greater enforcement.

Regardless, it is important to note the promptness of the lawsuit against ITC and monitor how this could reflect a change in environmental enforcement across the state. Notably, several other lawsuits have been brought by the State of Texas against polluters for similar incidents,[43] indicating that the ITC case may not be an outlier, and undercutting the criticism that the ITC suit is merely selective enforcement against a lesser-known company. Looking forward, this lawsuit and the legal claims advanced could provide a blueprint for how Texas and the TCEQ will operate in future environmental suits against polluters involved in environmental disasters.

Stacie M. Dowell is associate counsel for the Trinity River Authority of Texas and works on a wide variety of legal issues spanning contract, employment, business, property, and water law.

Thomas Kagerer is a second-year student at The University of Texas School of Law and a staff member of the Texas Environmental Law Journal.

[1] State of Texas’s First Amended Original Petition and Application for Injunctive Relief, State of Texas v. Intercontinental Terminals Co., LLC, (No. D-1-GN-19-001593), 2019 WL 2869894 (261st Dist. Ct., Travis Cty, Tex. Mar. 26, 2019) [hereinafter ITC Plaintiff’s Petition].

[2] ITC Fire Updates, Deer Park Emergency Services (last visited Feb. 11, 2020), https:// www.deerparktx.gov/1778/ITC-Fire.

[3] ITC Plaintiff’s Petition, supra note 1.

[4] Kiah Collier, Why has Texas suddenly decided to immediately sue industrial polluters?, Tex. Tribune (April 5, 2019), https://www.texastribune.org/2019/04/05/texas-attorney-general-ken-paxton-quickly-sue-industrial-polluters/.

[5] ITC Plaintiff’s Petition, supra note 1, at ¶ 5.2.

[6] Id. at ¶¶ 5.2–5.13.

[7] Id. at ¶ 5.12.

[8] Id. at ¶¶ 5.2–5.13.

[9] Id. at ¶¶ 5.9–5.13.

[10] Id.

[11] Id.

[12] Id. at ¶¶ 6.1–6.5.

[13] Id.

[14] Id. at ¶¶ 6.6–6.9.

[15] Id. at ¶ 5.6.

[16] Id. at ¶¶ 6.10–6.13.

[17] Id.

[18] Id. at ¶¶ 6.14–6.17.

[19] Id.

[20] Id. at ¶¶ 6.18–6.24.

[21] Id.

[22] Id.

[23] Id. at ¶¶ 6.25–6.32.

[24] Id. at ¶¶ 6.5; 6.9; 6.13; 6.17; 6.24; 6.32.

[25] Tex. Water Code Ann. § 7.102.

[26] ITC Plaintiff’s Petition, supra note 1, at ¶¶ 7.1–7.4.

[27] Id. at ¶ 8.1.

[28] Id.

[29] Defendant’s Original Answer, State of Texas v. Intercontinental Terminals Co., LLC, (No. D-1-GN-19-001593), 2019 WL 2869895 (261st Dist. Ct., Travis Cty, Tex. Apr. 15, 2019).

[30] Id.

[31] Id.

[32] Grant Durow & Luke Metzger, Major Malfunction Air Pollution from Industrial Malfunctions and Maintenance in Texas in 2017, Env’t Tex. (Jan. 2019), https://environmenttexas.org/sites/ environment/files/reports/TX_MajorMal_scrn.pdf.

[33] Patrick Michels, Is Ken Paxtion an Environmental Champion?, Sierra Club Lone Star Chapter (Sept. 16, 2019), https://www.sierraclub.org/texas/blog/2019/09/ken-paxton-environmental-champion (describing Ken Paxton’s change in environmental enforcement).

[34] ITC Plaintiff’s Petition, supra note 1.

[35] Id.

[36] See Jarod Cassidy, West, Texas Receives $10 Million In Fertilizer Plant Explosion Lawsuit, Thomas J. Henry, https://thomasjhenrylaw.com/blog/workplace-accidents/west-texas-receives-10-million-fertilizer-plant-explosion-lawsuit/ (last visited May 22, 2020); see also Paul J. Gately, West: Only a few explosion lawsuits remain unsettled, KWTX (Apr. 7, 2018), https://www.kwtx.com/content/misc /West–Only-a-few-explosion-lawsuits-remain-unsettled-480030113.html.

[37] See Morgan Smith, The Other BP Catastrophe, Tex. Tribune (Aug. 20, 2010), https:/ /www.texastribune.org/2010/08/20/beleBP-texas-city-refinery-faces-two-lawsuits/.

[38] See Jim Malewitz, Harris County to Paxton: We’re Still Suing Volkswagen, Tex. Tribune (Oct. 19, 2015), https://www.texastribune.org/2015/10/19/harris-county-paxton-well-continue-volkswagen-suit/.

[39] P.J. Huffstutter, Texas joins flood of states suing BP over 2010 Gulf spill, Thompson Reuters (May 18, 2013), https://www.reuters.com/article/us-usa-bp-texas-lawsuit/texas-joins-flood-of-states-suing-bp-over-2010-gulf-spill-idUSBRE94H0CE20130518.

[40] Collier, supra note 4.

[41] Id.

[42] Michels, supra note 33.

[43] See Defendant’s Original Answer, State of Texas v. KMCO, LLC, (No. D-1-GN-19-001795), 2019 WL 2607534 (261st Dist. Ct., Travis Cty, Tex. Apr. 29, 2019); see also Petition at 1, State of Texas v. Valero Energy Corp. & The Premcor Ref. Grp., Inc., No. D-1-GN-19-004121 (419th Dist. Ct., Travis County, Tex. Jul. 19, 2019).

Vol. 50-2 Federal Casenote

By Amanda Halter and Meredith Luneack

Federal Casenote

Not A Drop to Drink: Water Scarcity and Climate Change

Consequences at the US-Mexico Border

Introduction

Climate change is a cognizable, widely recognized source of insecurity globally.^{^[1]} At the US-Mexico border, climate change is already negatively impacting the ability of inhabitants to access and control water at this crucial boundary area. As climate change intensifies, the Rio Grande and Colorado Rivers—the primary sources of water for much of the US-Mexico border—will likely face increasing aridity and heightened water insecurity and demand.^{^[2]} Climate scientists predict that, if greenhouse gas emissions continue unabated, there is a ninety-nine percent chance that a “mega-drought” will hit the Southwest region of the United States before the end of the twenty-first century.^{^[3]} One study concluded that, as drought occurs and becomes more severe and more likely, these conditions will negatively impact both northern Mexico water supplies and groundwater recharge.^{^[4]} Water scarcity will potentially displace millions of people; scientists predict that lack of water and extreme temperatures may force residents living in the border region may be forced to move within the next eighty years.^{^[5]}

The Issue and Compiling Factors

Six million residents and two million acres of farmland in the Rio Grande Valley on the eastern end of the US-Mexico border rely on the Rio Grande River as their primary water source; yet, the Rio Grande remains one of the most endangered rivers in the country.^{^[6]} Scientists predict that residents of the Rio Grande Valley will face a water supply shortage of 600,000 acre-feet (or, 1.955106e+11 liquid gallons) by 2060.^{^[7]} This reduction will likely result in conflict over the remaining water resources amongst farmers, ranchers, and residents of the quickly-urbanizing region. Already, this conflict has begun. According to one 2015 study, five of the irrigation districts serving about 340,000 acres of farmland in the Rio Grande Valley were at “the highest risk of needing push water”^{^[8]} during periods of drought.^{^[9]} This uptick in agricultural water needs runs up against human consumers of water in the Valley, thirty-five percent of whom live below the poverty line.^{^[10]} According to the same study, “there are likely to be significant public health and economic impacts” if cities in the Valley cannot secure water for their residents.^{^[11]}

The public health impact could likely be even more acute in border colonias. These unincorporated, low-income neighborhoods often sit far from established cities and towns and lack access to typical municipal services such as water and electricity hookups.^{^[12]} In colonias along the border in New Mexico, residents rely on hand-dug wells for drinking water, which cannot access water as deeply as professionally-installed wells.^{^[13]} Because of this, when the water table drops below the deepest point of colonia wells during the hottest months of the year, colonia residents do not have access to any groundwater whatsoever.^{^[14]} The State of New Mexico faces some of the most acute water stress in the world, comparable to that of the United Arab Emirates.^{^[15]}

Thus, how should water resources be distributed between residential and agricultural consumers? What is the correct crisis response if an aquifer dries up? Such questions are even more complicated for border states; due to their immediate proximity to Mexico and their reliance on shared water resources, solutions to water scarcity problems inherently must be binational and reflective of the intertwined nature of water dependence. Texas and Mexico alone share fifteen aquifers, for example.^{^[16]} The population concentration along the border only exacerbates the problem; there are fourteen discrete “binational urban systems” that feature dense, interconnected populations that are particularly vulnerable to water scarcity.^{^[17]} The potential for systemic water scarcity along the entire US-Mexico border is magnified when meaningful water management and climate change policies are not pursued and implemented.

Potential Solutions

The federal governments of both Mexico and the United States have recognized the need for a bilateral response to water management. Bilateral cooperation, political and scientific, as well as agreements, formal and informal, are the best available tools for navigating an increasingly complex resource management future, and there are noteworthy successes, too. For example, the Climate Assessment for the Southwest (CLIMAS), a National Oceanic and Atmospheric Administration (NOAA) program housed at the University of Arizona, often works with Mexican academic counterparts, such as the Colegio de Sonora and the Universidad de Sonora, on climate science research undertakings.^{^[18]}

Furthermore, the International Boundary and Water Commission (IBWC) is successfully pursuing binational cooperation in water management. With a Mexican section based in Ciudad Juarez, Chihuahua, and an American section based in El Paso, Texas, the IBWC is a binational body charged with monitoring and managing the implementation of water-related treaties between the United States and Mexico.^{^[19]} While the IBWC boasts a thick catalog of treaties and evidence of cooperation and agreement between the United States and Mexico—the IBWC in its original form was created soon after the original drawing of the border line in the Treaty of Guadalupe Hidalgo^{^[20]}—critics have characterized it as anachronistic and insufficiently responsive to the modern environmental challenges that face binational negotiators today.^{^[21]} An audit of much of the IBWC’s recent work reveals that it perhaps best functions as a mechanic rather than as a strategist; that is, it is calibrated to implement the specifications of a broader water policy, not to create the policy itself. As such, despite its staying power as a source of binational negotiation, the IBWC may not be the right place to turn for a source of policy when faced with imminent water scarcity (though it is certainly a major player in policy fulfillment); this is perhaps exemplified by the fact that the majority of the American IBWC Commissioners have had professional and academic backgrounds in engineering, hydrology, geology, and topography.^{^[22]}

If broader policy is not in the wheelhouse of the IBWC Commissioners, then perhaps it belongs in a more political sphere. The Agreement on Cooperation for the Protection and Improvement of the Environment in the Border Area (the “La Paz Agreement”), signed in 1983 by then-U.S. President Ronald Reagan and Mexico’s President Miguel de la Madrid, is the chief political-level agreement made between the two countries that still shapes and underscores modern approaches to water management and environmental protection more broadly at the border. The stated objective of the La Paz Agreement is to “establish the basis for cooperation between the Parties for the protection, improvement and conservation of the environment and the problems which affect it, as well as to agree on necessary measures to prevent and control pollution in the border area, and to provide the framework for development of a system of notification for emergency situations.”^{^[23]} Functionally the La Paz Agreement has served as a launching pad for a number of binational programs aimed at environmental protection and water conservation, including most recently the Border 2020 initiative, launched as a partnership between the American Environmental Protection Agency (EPA) and Mexico’s Secretaría del Medio Ambiente y Recursos Naturales (SEMARNAT).^{^[24]}

Introduced in 2012, Border 2020 set out to achieve a number of “sustainable development” goals, one of which was to improve access to clean drinking water for the inhabitants of the border region.^{^[25]} Border 2020 also made explicit mention of involving stakeholders from all levels as program partners, implementing a regional, “bottom-up” approach to goal setting and implementation.^{^[26]} Border 2020 works primarily through grant-funded initiatives financed by the North American Development Bank (NADB), and regional EPA offices oversee its implementation, providing resources and accountability for the community-level programs working on water protection and conservation.^{^[27]}

Despite its lofty goals, the Border 2020 initiative has been plagued with a number of problems, including insufficient reporting on outcomes, a lack of transparency, and failure to monitor important environmental indicators, according to the EPA Inspector General (IG) office. Chief among these challenges is the absence of meaningful documentation of progress. Regarding the composition of regional action plans meant to keep track of the grant-funded programs, for example, the IG reported that they were frequently inconsistent in format, lacked the requisite information, or failed to provide updated information.^{^[28]} The EPA also failed to share any metrics on success with the public, or any information on which programs received grants and whether or not they were successful.^{^[29]} Finally, despite the initiative’s stated goal of protecting the environment and public health in the border region, Border 2020 has failed to track how its work, or lack thereof, has affected the area’s environmental health; the most recent overview available on the environmental conditions at the border is a 2016 interim report.^{^[30]} Many of these failures can be attributed to a lack of funding; according to the IG, the EPA reported that it did not have the resources to track progress in the way that it should, and that “[w]ithout an additional means to track established Border 2020 Program environmental indicators, the program remains unable to determine whether it is accomplishing its stated goals and objectives.”^{^[31]}

A Holistic Approach

But because the above agreements are between countries as equal partners, cooperation and inclusion must be not only vertical, with regional and municipal stakeholders, but respected in good faith horizontally by both country partners. Such respect is difficult to consistently achieve, as political turnover occurs much more quickly in both countries than it often takes to achieve meaningful progress. Additionally, consistent violation of binational agreements can decrease goodwill between signatories; for example, some critics argue that the American pursuit of the construction of a border barrier across administrations violates the letter and spirit of the La Paz Agreement.^{^[32]} Is there a happy medium between the granular consistency of the IBWC and the political volatility of the La Paz Agreement and its ilk? With so many stakeholders with so many interests at so many levels, it is difficult to conceive of an agreement that could possibly take all perspectives into account. But perhaps as the danger of aridity and water shortages becomes increasingly stark and imminent, interests will coalesce, and differences between stakeholders will not matter as much as the existential need to secure water, in a sustainable way, for those living at the US-Mexico border.

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.

Meredith Luneack is a third-year student at The University of Texas School of Law and a senior editor of the Texas Environmental Law Journal.

^{^[1]} The National Security, Military, and Intelligence Panel on Climate Change of The Center for Climate and Security, A Security Threat Assessment of Global Climate Change 6 (Feb. 2020).

^{^[2]} Naveena Sadasivam, One of the Fastest Growing Regions of the US Could Run Out of Water, Quartz & The Tex. Observer (Aug. 21, 2018), https://qz.com/1353697/one-of-the-fastest-growing-regions-of-the-us-could-run-out-of-water/.

^{^[3]} Robinson Meyer, A Mega-Drought is Coming to America’s Southwest, The Atlantic (Oct. 11, 2016), theatlantic.com/science/archive/2016/10/megadroughts-arizona-new-mexico/503531/.

^{^[4]} Margaret Wilder et al., In Assessment of Climate Change in the Southwest United States: A Report Prepared for the National Climate Assessment ch. 16 (G. Garfin et al. eds., Island Press 2013).

^{^[5]} Meyer, supra note 3.

^{^[6]} Zoe Schlanger et al., In a Warming World, The Fight for Water Can Push Nations Apart—Or Bring Them Together, Quartz & The Tex. Observer (Aug. 16, 2018), https://qz.com/1353831/in-a-warming-world-the-fight-for-water-can-push-nations-apart-or-bring-them-together/.

^{^[7]} Sadasivam, supra note 2.

^{^[8]} Id. “Push water” is a source of surplus water to be tapped into during periods of drought.

^{^[9]} Id.

^{^[10]} Jason Cohen, Rio Grande Valley Tops List of “America’s Poorest Cities”, Texas Monthly (Jan. 21, 2013), https://www.texasmonthly.com/articles/rio-grande-valley-tops-list-of-americas-poorest-cities/.

^{^[11]} Sadasivam, supra note 2.

^{^[12]} Daniel Salinas, Drinking Water Along The US-Mexico Border Threatened by Global Warming, KBPS San Diego (Jun. 12, 2017), https://www.kpbs.org/news/2017/jun/12/drinking-water-along-us-mexico-border-threatened-g/.

^{^[13]} Id.

^{^[14]} Id.

^{^[15]} Morgan McFall-Johnsen, New Mexico faces extreme water scarcity on par with the United Arab Emirates. Experts warn more ‘day zeros’ are looming, Business Insider (Aug. 7, 2019), https:// www.businessinsider.com/new-mexico-faces-extreme-water-stress-2019-8.

^{^[16]} Schlanger, supra note 6.

^{^[17]} Greg Garfin et al., Assessment of Climate Change in the Southwest United States, Southwest Climate Alliance 343 (2013).

^{^[18]} Id.

^{^[19]} Nicole T. Carter et al., U.S.-Mexican Water Sharing: Background and Recent Developments, Congressional Research Service 5 (2017).

^{^[20]} History of the International Boundary and Water Commission, Int’l Boundary & Water Comm’n, https://www.ibwc.gov/About_Us/history.html, (last visited Mar. 15, 2020).

^{^[21]} Helen Ingram & David R. White, International Boundary and Water Commission: An Institutional Mismatch for Resolving Transboundary Water Problems, 33 Nat. Res. J., 153, 153 (1993).

^{^[22]} History of U.S. Section Commissioners, Int’l Boundary & Water Comm’n, https://www.ibwc.gov/About_Us /Commish_History.html (last visited Apr. 6, 2020).

^{^[23]} Agreement on Cooperation for the Protection and Improvement of the Environment in the Border Area, U.S.-Mex., art. I, Aug. 14, 1983, 35 U.S.T. 2916.

^{^[24]} U.S. Envtl. Prot. Agency & Mex. Sec. of Env. & Nat. Res., EPA-160-R-12-001, Border 2020: U.S.-Mex. Envtl. Program (2012).

^{^[25]} Id. at 1.

^{^[26]} Id. at 8.

^{^[27]} U.S. Envtl. Prot. Agency Off. of the Inspector Gen., 20-P-0083, Border 2020: Mgmt. Controls Needed to Verify and Rep. Border 2020 Program Accomplishments 3 (Feb. 18, 2020).

^{^[28]} Id. at 8–9.

^{^[29]} Id. at 10–11.

^{^[30]} Id. at 9.

^{^[31]} Id. at 10.

^{^[32]} Oscar Ibanez & Stephen P. Mumme, U.S.-Mexico Environmental Treaty Impediments to Tactical Security Infrastructure Along the International Boundary, Nat. Res. J., 817-18 (2009).

Vol. 50-2

By Josh Katz and Emily Meier

Recent Publications

An Analysis of “Private Energy” by Yael R. Lifshitz

Introduction

In her article “Private Energy,” Yael R. Lifshitz contributes to the growing legal discussion around distributed generation. Distributed generation (DG) encompasses various technologies that generate electricity at or near where it will be used.[1] Using this approach, Lifshitz evaluates the DG market through the lens of a private law regime[2] and focuses on aspects of property law and the apparent connection to energy. Lifshitz argues that the role of property law in energy production and consumption is often ignored, and this oversight stands in the way of effective policy.

Lifshitz’s Analysis

Lifshitz begins her discussion by pointing out the function of property entitlements in the realm of the energy industry.[3] She highlights the importance of the locations that energy production and consumption take place. Property entitlements provide access to these unique locations. For example, oil production is ruled by the ability of developers to gain “mineral rights” to drill. Compare this to wind energy, which requires developers to gain “wind rights” to build a large-scale wind farm. In sum, the different energy resources require distinct property entitlements.[4]

Next, Lifshitz connects property entitlements to the greater energy market and its management, examining the influence of property law on the field of energy.[5] For example, according to the National Renewable Energy Laboratory, over one third of households and commercial enterprises nationwide rent or lease their dwellings.[6] The typical rental or lease agreement prohibits renters from participating in the distributed generation market making it impossible to host a solar photo-voltaic system.[7] Lifshitz calls this the “renters’ problem,” and proposes a change in the standard landlord-tenant leases to include “distributed energy enabling clauses.” These clauses would allow renters to safeguard a right to use solar panels through their lease agreements. [8]

Lifshitz also suggests a novel solution to the renters’ problem called “we-solar.” Under this model, renters would share an interest in pooled-energy and distributed generation resources. Analogous to a carshare program or a co-working space,[9] we-solar would allow renters to access distributed energy when and where they need it.[10] Lifshitz’s model differs from “community solar” because it allows for a broader range of energy resources—off-site projects, on-site projects, microgrids, and crowd-funding solar.[11] Moreover, this model gives renters—or even homeowners who do not have the necessary property rights to install solar panels—access to distributed energy.[12]

Finally, from a policy standpoint, Lifshitz establishes three pillars for which policy makers should pay attention if they wish to advocate for the use of distributed generation in their respective states and municipalities. [13] First, they should focus on property entitlements throughout the entire energy cycle, from production, to transmission, and ultimately consumption.[14] Second, policy makers should look to private law tools when approaching the interaction of energy policy and climate change.[15] Third, policy makers need to think about property law as a facilitator and shaper of public policy.[16]

Conclusion

Lifshitz’s proposal utilizes property law in energy production and consumption in a way that has never been considered. Her novel policy proposals could affect the general public’s access to solar energy in the future, and she even considers potentially expanding into implications of the peer-to-peer trading we are currently seeing. Research plays an important role in shaping how policy is formed and how legal communities will need to increasingly utilize creative problem-solving skills.

Josh Katz is a partner at Bickerstaff Heath Delgado Acosta LLP and represents public and private entities before agencies and in state and federal court in the areas of environmental law, municipal law, water rights, and utilities.

Emily Meier is a third-year student at The University of Texas School of Law and a staff member of the Texas Environmental Law Journal.

[1] Distributed Generation of Electricity and its Environmental Impacts, Envtl. Prot. Agency, https://www.epa.gov/energy/distributed-generation-electricity-and-its-environmental-impacts (last visited Mar. 20, 2020).

[2] Yael R. Lifshitz, Private Energy, 38 Stan. Envtl. L.J. 119 (2019).

[3] Id. at 128.

[4] Id. at 129.

[5] Id.

[6] Id. at 140–42.

[7] Id. at 126.

[8] Id.

[9] Id. at 146.

[10] Id. at 149.

[11] Id. at 153–56.

[12] Id.

[13] Id. at 127.

[14] Id.

[15] Id.

[16] Id.

Vol. 50-2 Air Quality

By John Turney and Jacob Gildan

Air Quality

TCEQ Adopts Proposed Bexar County 2015 Eight-Hour Ozone Nonattainment Area FCAA, §179B Demonstration SIP Revision

Summary

On July 1, 2020, the Texas Commission on Environmental Quality (TCEQ) adopted the propose State Implementation Plan (SIP) Revision for Bexar County concerning the 2015 Eight-Hour National Ambient Air Quality Standard (NAAQS) for Ozone.[1] The SIP revision demonstrates, pursuant to Section 179B of the Federal Clean Air Act (FCAA), that the Bexar County marginal ozone nonattainment area would attain the 2015 standard “but for” anthropogenic emissions emanating from outside the United States.[2] Given emissions and air flow trajectories, the proposal concludes sufficient ozone transport occurs from Mexico to prevent Bexar County’s from attaining the standard.[3]

Background

Brief Overview of the Ozone Standards Under the FCAA

As authorized by the FCAA, the United States Environmental Protection Agency (EPA) issues NAAQS that individual states are required to meet by proposing and completing SIPs.[4] Previously, the EPA’s requirements for ozone levels were based on a one-hour standard, but this was phased out in favor of eight-hour standards.[5]

The 1997 eight-hour standard was 0.08 parts per million (ppm), or 80 parts per billion (ppb).[6] In 2008, the standard was lowered to 0.075 ppm (75 ppb) and in 2015, it was lowered again to 0.070 ppm (70 ppb), with anti-backsliding requirements for areas that did not qualify as attaining the standard.[7] Under the ozone standard, nonattainment areas can be designated as marginal, moderate, serious, severe, or extreme—depending on the extent of exceedance.[8]

Bexar County’s Status Under the 1997 EPA Eight-Hour Ozone NAAQS

The San Antonio area, along with twelve other Early Action Compact areas, reached attainment under the EPA’s 1997 Eight-Hour Ozone Standard in 2008.[9] Upon reaching this attainment, the one-hour ozone standard was revoked for the San Antonio area in April 2009.[10] As a result of being designated as attainment for the 1997 standard, the San Antonio area was no longer required to make any additional SIP revisions if the area continued to monitor attainment for the standard.[11]

Purpose of the Bexar County SIP Revision Proposal

Bexar County is currently working toward attainment under the 2015 Eight-Hour Ozone NAAQS and proposed a SIP revision to adjust its requirements for satisfying this standard.

On September 24, 2018, EPA designated Bexar County as marginal nonattainment (the least severe nonattainment level) under the 2015 NAAQS eight-hour ozone standard of 0.070 ppm, with a deadline of September 24, 2021 to achieve attainment.[12] Under EPA’s standards, attainment is measured based on three full years of monitoring data for marginal nonattainment areas, so Bexar County will need to meet the NAAQS standard based on its monitor data in 2018, 2019, and 2020.[13]

For nonattainment areas that might be influenced by emissions sources outside of the United States, states are allowed to submit to the EPA an analysis of the influence of international emissions on the nonattainment areas under FCAA §179B, and seek relief from some of the NAAQS requirements.[14] If a nonattainment area can show that it is affected by emissions from outside of the United States, EPA has discretion to approve a plan that demonstrates that the area will achieve NAAQS standard attainment by the required date, without including these international emissions in the calculation.[15] This is very beneficial for a nonattainment area because if the EPA approves such a revision, the area would no longer be required to meet certain benchmarks that normally apply, such as mandatory reclassification provisions for failing to reach the NAAQS standard by the deadline.[16]

Bexar County’s SIP Revision

The Bexar County’s 2015 eight-hour ozone nonattainment area is seeking this EPA approval under FCAA §179b to prevent being reclassified from marginal to moderate nonattainment if the area were not to meet the NAAQS standard during the 2018-2020 monitoring period.[17] With EPA approval, the area would still be designated as marginal nonattainment until it ultimately meets the 2015 standard, even if it doesn’t meet the requirements during the 2018-2020 monitoring period.[18]

To determine the extent of international emissions on Bexar County’s 2015 eight-hour ozone nonattainment area, TCEQ conducted an analysis that examined several factors.[19] The analysis looked at the nonattainment area’s modeled 2020 future-year design value (DVF), the estimated international anthropogenic contribution, the effect of local versus boundary conditions, and the area’s current monitored design value.[20] The analysis included sophisticated photochemical modeling utilizing meteorological and detailed emission inputs to simulate the formation and transport of ozone.[21] TCEQ determined that while most of the air flow trajectories across Mexico correspond to monitored ozone concentrations under the 70 ppb standard, a sufficient number of those trajectories corresponded to concentrations above 70 ppb, to compromise Bexar County’s status.[22] Accordingly, the analysis concludes that the Bexar County nonattainment area would achieve the NAAQS standard by the end of the 2018-2020 monitoring period, “but for” international anthropogenic contributions.[23]

A complicating factor affecting the proposal is that the EPA has not yet published guidance regarding FCAA §179B transport demonstrations, though such guidance is under development. The proposal notes this lack of guidance and commits to appropriate amendments when it is issued.[24]

Bexar County officials supported the TCEQ analysis and requested its submittal to the EPA as sufficient under the requirements of FCAA §179B, as discussed above.[25] On January 15, 2020, the TCEQ approved this request.[26] Following TCEQ approval, the proposed SIP revision was subject to a public comment period from January 17 through February 19, 2020. There was a public hearing scheduled for February 18, 2020. TCEQ adopted the SIP revision on July 1, 2020.[27]

John Turney is retired Senior Counsel of Richards Rodriguez & Skeith and represented regulated companies in a variety of environmental and administrative matters before the TCEQ and other regulatory agencies. He is a graduate of Texas A&M University and The University of Texas School of Law.

Jacob Gildan is a third-year student at The University of Texas School of Law and a senior editor for the Texas Environmental Law Journal.

[1] San Antonio: Latest Ozone Planning Activities, Tex. Comm’n on Envtl. Quality (Aug. 11, 2020), https:/ /www.tceq.texas.gov/airquality/sip/san/san-latest-ozone.

[2] Id.

[3] See Tex. Comm’n on Envtl. Quality, Agenda Item Request for Proposed Revision of the State Implementation Plan 1 (Jan. 15, 2020).

[4] Evan Z. Pearson & John B. Turney, TCEQ Redesignation Request and Maintenance Plan for the HGB Area’s One-Hour and 1997 Eight-Hour Ozone National Ambient Air Quality Standards, 49 Tex. Envtl. L.J. 339 (2019).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] San Antonio: Latest Ozone Planning Activities, Tex. Comm’n on Envtl. Quality (Aug. 11, 2020), https://www.tceq.texas.gov/airquality/sip/san/san-latest-ozone.

[10] Id.

[11] Id.

[12] Tex. Comm’n on Envtl. Quality, Agenda Item Request for Proposed Revision to the State Implementation Plan at 1 (Jan. 15, 2020).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at 2.

[20] Id.

[21] Revisions to the State of Texas Air Quality Implementation Plan for the Control of Ozone Air Pollution at 2-3, supra note 3.

[22] Id. at 2–41.

[23] Tex. Comm’n on Envtl. Quality, Agenda Item Request for Proposed Revision to the State Implementation Plan at 2 (Jan. 15, 2020).

[24] Id. at 3.

[25] Id. at 2.

[26] Id.

[27] San Antonio: Latest Ozone Planning Activities, Tex. Comm’n on Envtl. Quality (Aug. 11, 2020), https://www.tceq.texas.gov/airquality/sip/san/san-latest-ozone#Bexar179B2020.