Summary of a Recent
Judicial Development in
Animal Feeding Operations

Texas City Wins Appeal to Halt the Proliferation of CAFO
Permitting Near Impaired Watershed

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In City of Waco v. Texas Natural Resource Conservation Commission, 83 S.W.3d 169 (Tex. Ct. App.), the Court of Appeals for the State of Texas reversed and remanded the district court's dismissal of an action filed by a city and a dairy producer seeking declaratory judgment. The parties sought a judgment that Texas Natural Resources Conservation Commission's (TNRCC) order regulating future permits for confined animal feeding operations (CAFOs) was invalid. Id.

Background

TNRCC promulgated an order regulating future permits for CAFOs. Id. at 172. At the time of the promulgated order, the North Bosque River watershed had a high concentration of large dairy operations discharging into the river. Id. Pursuant to the Clean Water Act (CWA), TNRCC identified two segments of the Bosque River that were impaired by high concentrations of phosphorous, a nutrient found in animal waste, and developed a plan to reduce the pollution and bring the water quality into compliance with state water quality standards. Id.

The city of Waco and the Dairy Producer's Association (DPA) brought suit against TNRCC. Id. They claimed that instead of developing a plan to remedy the water quality problem in the Bosque River watershed, TNRCC approved new applications for additional discharges by promulgating an order in February 2000 regulating future permits for CAFOs. Id. The city and DPA filed actions for declaratory judgment attacking the order. Id. TNRCC responded by withdrawing the order and moving to dismiss both actions, claiming that they were moot and not ripe. Id. The district court dismissed both actions and both city and DPA appealed the dismissal. Id. Following oral arguments, DPA dismissed its appeal. Id.

Arguments

The city sought a declaratory judgment to stop TNRCC from granting additional CAFO permits for the Bosque River Watershed until it complied with federal regulations that were incorporated into state law-namely, to develop Total Maximum Daily Loads for the watershed. Id. at 176. TNRCC had submitted a TMDL to the Environmental Protection Agency (EPA) but had not received approval. Id. Rather than holding the status quo number of permitted CAFOs at bay, the city argued that TNRCC exacerbated the problem by approving new applications for additional discharges of waste into the polluted river. Id. at 176-77. The city argued that granting new permits violated state regulations that prohibited the permitting of additional CAFOs until the TNRCC implemented measures that would improve the water quality to meet state standards. Id.

TNRCC claimed that it could grant new permits as long as the additional discharges did not worsen the Bosque River water quality. Id. at 176. Additionally, TNRCC argued that the city's suit was not ripe, and would not ripen until the TNRCC issued a specific permit. Id. at 177. Absent the issuance of a specific permit, the city's claim was not a pure question of law and any judicial decision would be an advisory opinion. Id.

Analysis and Holdings

The Texas Court of Appeals held that whether state law operated to prohibit TNRCC from approving any new discharge permits until it adopted the necessary pollution-reduction measures presented a purely legal inquiry. Id. The court believed the facts were sufficiently developed such that the dispute was not hypothetical. Id. Although TNRCC accurately pointed out that judicial review, pursuant to the Administrative Procedures Act, was limited to agency rulings, orders, decisions, or the applicability of the rule, the court ruled that the city, instead, used the Uniform Declaratory Judgments Act (ADJA) as the basis of its lawsuit. Id. According to ADJA, a claimant can obtain a declaration of rights, status, or other legal relations pursuant to the Act if a claimant can show: "(1) a justiciable controversy exists as to the rights and status of the parties; and (2) the controversy will be resolved by the declaration sought." Id. at 178. The court held that both of these standards were satisfied and reversed and remanded the case for further consideration. Id.

The case was decided on June 21, 2002.