Jeff Civins in Law360: Texas Rulings Could Ease Permit Battles at TCEQ

05/05/2014


Recent Texas appellate rulings give broad discretion to the Texas Commission on Environmental Quality in determining whether opponents of proposed air- and water-quality permits are entitled to a formal administrative hearing, potentially allowing applicants to avoid lengthy court battles and years of delay, lawyers say.

Administrative lawyers say previous court precedent had made it possible for parties with even tenuous claims that they would be negatively affected by a waste disposal or water pollution discharge permit to force the applicant into a contested case hearing, a costly and lengthy administrative trial...

Jeff Civinsof Haynes and Boone, LLP, an adjunct professor at the University of Texas School of Law, says the contested case hearing process, which Texas adopted in the mid-1970s, gives people opposed to a project “a significant gun to hold to the head of a project developer.” Once a project opponent meets the standing threshold, they can force the applicant to go through a trial, delaying their projects and costing applicants a great deal of money.

Civins says the recent rulings are “more process than substance,” but that with the TCEQ now given more leeway to make that threshold determination of who has the right to a hearing, applicants face less risk of being thrown into the lengthy hearing process by an opponent who wouldn’t be directly impacted by the permit.

Excerpted from Law360, May 5, 2014. To view full article, click here (subscription required).

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