Summary of a Recent
Judicial Development in
Environmental Law

Organic Farmer's Request for Hearing Denied

Harrison M. Pittman
Staff Attorney

The Texas Court of Appeals has affirmed a decision of the Texas Commission on Environmental Quality to deny an organic farmer's request for a contested case hearing to challenge a corporate poultry farm's application for a permit that would allow the farm to change its operation from a dry waste-management system to a wet waste-management system. Collins v. Texas Natural Resource Conservation Commission, 94 S.W.3d 876, 881-84 (Tex. Ct. App. 2002). The court determined that there was substantial evidence supporting the Commission's determination that the organic farmer was not an affected person and therefore not entitled to a contested hearing; that he did not have a liberty or property interest entitling him to predeprivation procedural protection; and that he was afforded sufficient procedural due process by the Commission. See id. at 881-84.

B &N Poultry, Inc. ("B &N"), operated an 870-acre poultry farm with a maximum capacity of approximately 500,000 hens. See id. at 879. It applied to the Texas Commission on Environmental Quality ("Commission") for a permit that would allow it "to expand its poultry operation by approximately two million hens and to replace its existing dry waste-management system with a wet waste-management system utilizing two non-discharge waste lagoons lined with compacted clay." Id.

Robert Collins, plaintiff, operated a 209-acre organic farm "located approximately 590 feet from B & N's land at its closest point." Id. Upon learning of B & N's permit application, Collins submitted a request for a contested case hearing to the Commission "claiming that his land was adjacent to B & N's property and that his groundwater resources and air quality, already adversely affected by B & N's operations, would further deteriorate if the permit was granted." Id. After several hearings before the Commission and other administrative bodies, the Commission denied Collins's request for a contested hearing. See id. at 879-81. Collins appealed the Commission's decision to district court, and the court affirmed the Commission's decision. See id. at 881. Collins appealed the district court's decision to the Texas Court of Appeals. See id.

Collins asserted that the Commission's decision to deny his request for a contested hearing was not supported by substantial evidence. See id. He also claimed that "he was denied due process of law, and therefore former section 5.115 of the Texas Water Code, which authorized the Commission's denial of his hearing request is unconstitutional as applied to him." Id. He further claimed that the Commission "erred in not providing findings of fact and conclusions of law in its order denying" his hearing request. Id.

The court explained that "[w]e may not substitute our judgment for that of the agency and may only consider the record on which the agency based its decision." Id. (citation omitted). It also explained that the issue was not whether the agency made the correct decision, "but rather whether there is some reasonable basis in the record for its action." Id. (citation omitted). A request for a contested hearing such as Collins's must be granted if it is "made by an affected person" and such request is reasonable and supported by competent evidence. Id. at 882 (citing 30 Tex. Admin. Code § 55.27). An "affected person" is a person "who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the application." Id. (citation omitted).

The appeals court determined that the Commission was within its discretion in deciding that Collins was not an affected person. See id. at 882-83. It noted that Collins' home was approximately 1.3 miles away from the location of B & N's proposed lagoons and that Collins predicted that the lagoons will produce "noxious odors." See id. It rejected this assertion, stating that "a concentrated animal feeding operation, such as B & N's farm, qualifies for a standard air permit- issued without the opportunity for a contested case hearing- if its permanent odor sources are at least half a mile from occupied residences and business structures." Id.

The court added that

Collins also predicts that his groundwater will be polluted and submitted an affidavit of an engineer stating that clay liner systems are difficult to install and might fail. But the permit only authorizes a correctly installed lagoon system. The type of failure that Collins fears would actually be a permit violation. Moreover, the Commissioners had before them competent evidence that the environment-including Collins's land, health, and safety- would be positively impacted by changing from the existing dry waste management to the clay lined lagoon system. By the time the Commission issued its order denying Collins's hearing request, it had considered the detailed affidavits of two engineers indicating that the proposed clay lined lagoon system is environmentally superior to a dry waste system and that, in any event, Collins's groundwater resources were very unlikely to be affected even by the failure of the lagoon system. We find substantial evidence in the record indicating that Collins is not an affected person and therefore supporting the Commission's decision denying Collins's hearing request.

Id. (emphasis supplied).

The court also rejected Collins's claim that he was denied due process. See id. at 883. In making this determination the court explained that its first task was to determine whether Collins had "a liberty or property interest that [was] entitled to pre-deprivation procedural protection" and if he was entitled to such protection, it had to then determine what process was due. Id. (citation omitted)(emphasis supplied). The court stated that "[w]hile the environmental damage and nuisance that Collins predicts would surely deprive him of his valuable property rights, we note that the permit does not authorize such failures." Id. (citation omitted). It also stated that "[t]he permit itself requires an operation subject to oversight so that it will not deprive Collins of any concrete liberty or property interest. Mere speculation of failure in the face of conflicting evidence about the improved operation of the site under the permit does not deprive Collins of protected liberty or property rights." Id. at 883-84. The court added that "Collins received all the process he was due . . . . In short, he was afforded ample opportunity for his concerns and request to be heard. He simply disagrees with the Commission's decision." Id. at 884.

Finally, the court rejected Collins's argument that the Commission erred when it failed to include findings of fact and conclusions of law in its order denying his request for a contested hearing. See id. It stated that

[w]e have specifically held that a party to a contested case hearing must complain about a lack of findings of fact and conclusions of law in its motion for rehearing in order to preserve that complaint for appeal. Under the regulations applicable to this case, the same procedures for filing a motion for rehearing after a contested case hearing apply when a hearing request is denied. Because Collins did not complain in his motion for rehearing about the Commission's failure to make findings and conclusions, we hold that this issue was not preserved for review.

Id.

The case was decided on December 31, 2002; this summary was posted in June, 2003.