Ranchers Win Contested Case Appeal

Contestedcase, Irvine, McEvilly, News & Blog

Irvine & Conner is proud to represent parties in contested case hearings concerning air permits, wastewater permits, water rights permits, and groundwater permits. Contested case hearings are one method for community members to get involved in the permitting process used by facilities and developers. Recently attorneys at Irvine & Conner were able to successfully advocate for clients all the way through the administrative and district courts culminating in the rare overturning by a district court judge of a Texas Commission on Environmental Quality (TCEQ) Commissioners’ permitting decision. The end result was a favorable settlement for our client.

Discharging Developer Finds Itself the Subject of a Contested Case Hearing

Irvine & Conner represented a ranching family in a contested case hearing arising out of a developer’s application for a permit to discharge wastewater from a new residential development onto the property of its neighbor. The ranching family fought the wastewater permit in a “contested case hearing” in the administrative courts. Attorneys Charles Irvine, Mary Conner, and Michael McEvilly of Irvine & Conner, litigated the case in the administrative courts and oversaw three expert witnesses as well as several lay witnesses. They put on extensive evidence about the failure of the permit applicant to utilize an actual “watercourse of the state” and the failure to protect the ranchers’ property and livestock. The administrative law judge ruled in favor of the ranchers, and ruled that the permit should not be issued for many of the reasons presented by the Irvine & Conner attorneys.

The administrative law judge recommendation was presented to the TCEQ Commissioners. However, the Commissioners made the decision to issue the permit nonetheless, so the Irvine & Conner attorneys appealed to state district court. The district court judge held an oral hearing, at which Irvine and McEvilly presented oral argument. They persuasively alerted the court to the procedural irregularities of the TCEQ Commissioners’ decision. In a rare move, the district court overturned the Commissioners’ decision and vacated the permit. The case settled after the developer appealed. As a result, the ranchers achieved strict standards for the effluent being discharged, and guaranteed adequate monitoring to ensure compliance with the discharge standards.

Contested Case Hearings as a Method of Community Involvement

Contested case hearing offer a trial-like proceeding in administrative courts, where interested neighbors or downstream groups can protest the application process for air, wastewater, or groundwater pollution permits. In these hearings, protestants can present evidence, including that of procedural deficiencies, call and cross-examine witnesses to strengthen their case, and obtain a ruling from an administrative law judge.

Contested Case Hearings as a Step Toward Private Negotiation

The contested case hearing process in Texas is actually more onerous than what other states, or the Environmental Protection Agency, otherwise require. This allows citizens a greater foothold in the permitting approval process. This is important because Texas has a number of potentially polluting facilities, and citizens often want to get involved. Moreover, these hearings often lead to negotiations and settlements that produce stronger permits that are more protective of health and environmental impacts. Few permit applications are referred to the contested case hearing process, but those that do often come out with stronger permits that are less likely to be successfully challenged by citizens at a later date. This process thus benefits both the protestants and the applicants.

 

The attorneys at Irvine & Conner have successfully protected their clients’ interests in many contested case hearing for air permits, wastewater permits, water rights permits, and groundwater permits. Getting started with the protestation of a permit application requires a careful analysis of standing, evidence, and procedural decisions that position a protestor to make the best case possible for denial or modification of a pending permit. Our office would be happy to speak to individuals and groups interested in contested case hearings for any permit challenges and discuss options. Please call our office at 713.533.1704.