2020 Environmental Real Estate Issues

On November 19, 2021, the Texas Supreme Court granted the petition for review in Dyer v TCEQ, which means the Court has agreed to hear arguments in this appeal of a decision by the Austin Court of Appeals.

Court Considers only a Limited Number of Cases
The Texas Supreme Court agrees to consider only a small percentage of the petitions for review submitted to it. Most petitions are denied, indicating the Court will not consider the matter, although the Court does not necessarily agree with the lower court’s decision. Granting a petition is not a final decision in a case, it means the Court will consider the matter.

TCEQ Issuance of Injection Well Permit
A prior alert (Austin Court of Appeals Upholds TCEQ’s Issuance of Controversial Injection Well Permit) discussed the Austin Court’s decision, which upheld TCEQ’s decision to issue the permit, based on a “no harm” letter issued by the Railroad Commission of Texas (RCT), even though RCT had instituted proceedings to reconsider the “no harm” letter while the well permit application was pending before TCEQ. RCT eventually withdrew the “no harm” letter, but only after TCEQ issued the permit.

Austin Court’s Dissent Criticized TCEQ’s Disregard of Administrative Law Judges’ Findings
One of the judges in the Austin Court’s three-judge panel dissented, arguing TCEQ had improperly issued the permit. According to the dissent, TCEQ wrongly disregarded findings of two administrative law judges who heard evidence in the permitting case and recommended against its issuance “without providing any meaningful reasoning” for TCEQ’s decision.

Oral arguments are set for January 12, 2022. For access to briefs and other documents relating to the case https://search.txcourts.gov/Case.aspx?cn=19-1104&coa=cossup