                                                                                      ACCEPTED
                                                                                   04-15-00433-cv
                                                                      FOURTH COURT OF APPEALS
                                                                           SAN ANTONIO, TEXAS
                                                                            9/17/2015 10:20:01 AM
                                                                                   KEITH HOTTLE
                                                                                           CLERK

                             No. 04-15-00433-CV
                     In the Court of Appeals            FILED IN
                                                 4th COURT OF APPEALS
                 for the Fourth Judicial District SAN ANTONIO, TEXAS
                                                09/17/2015 10:20:01 AM
                       San Antonio, Texas          KEITH E. HOTTLE
                                                         Clerk

         T EXAS C OMMISSION ON E NVIRONMENTAL Q UALITY ;
                   P OST O AK C LEAN G REEN , I NC .,
                                          Appellants,
                                      v.

 G UADALUPE C OUNTY G ROUNDWATER C ONSERVATION D ISTRICT,
                                    Appellee.

                              On Appeal from the
              2nd 25th Judicial District Court, Guadalupe County

         OPENING BRIEF OF APPELLANT
 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY


KEN PAXTON                                 SCOTT A. KELLER
Attorney General of Texas                  Solicitor General

CHARLES E. ROY                             BILL DAVIS
First Assistant Attorney General           Assistant Solicitor General
                                           State Bar No. 24028280
O FFICE OF THE A TTORNEY G ENERAL          Bill.Davis@texasattorneygeneral.gov
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548                   NANCY ELIZABETH OLINGER
Tel.: (512) 936-1896                       CYNTHIA WOELK
Fax: (512) 370-9191                        Assistant Attorneys General



                  O RAL A RGUMENT R EQUESTED
              I DENTITY         OF   P ARTIES    AND    C OUNSEL

Appellant
Texas Commission on Environmental Quality (“the Commission” or “TCEQ”)

Counsel for the Commission
Lead Appellate Counsel                       Additional Appellate and Trial Counsel
Bill Davis                                   Nancy Elizabeth Olinger
Assistant Solicitor General                  Cynthia Woelk
OFFICE OF THE ATTORNEY GENERAL               Mark Walters (trial court only)*
P.O. Box 12548 (MC 059)                      Assistant Attorneys General
Austin, Texas 78711-2548                     OFFICE OF THE ATTORNEY GENERAL
Bill.Davis@texasattorneygeneral.gov          P.O. Box 12548 (MC 066)
                                             Austin, Texas 78711-2548

Additional Trial Counsel
David Preister
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 066)
Austin, Texas 78711-2548

Appellant
Post Oak Clean Green, Inc. (“Post Oak”)

Counsel for Post Oak
Lead Appellate Counsel                       Additional Appellate and Trial Counsel
Christopher Dodson                           John A. Riley
BRACEWELL & GIULIANI                         JACKSON, GILMOUR & DOBBS, PC
711 Louisiana St., Suite 2300                1115 San Jacinto Blvd., Suite 275
Houston, Texas 77002                         Austin, Texas 78701
chris.dodson@bgllp.com                       jriley@jgdpc.com




   * Mark Walters is no longer with the Office of the Attorney General.

                                         i
Counsel for Post Oak (continued)
Additional Trial Counsel
Robert D. Ayers                           Peter J. Stanton
Kelley L. Clark                           LAW OFFICES OF PETER J. STANTON
BRACEWELL & GIULIANI                      111 Soledad, Suite 1350
711 Louisiana St., Suite 2300             Riverview Towers
Houston, Texas 77002                      San Antonio, Texas 782025

Appellee
Guadalupe County Groundwater Conservation District (“the District”)

Counsel for the District
Marisa Perales
FREDERICK, PERALES, ALLMON &
 ROCKWELL, P.C.
707 Rio Grande, Suite 200
Austin, Texas 78701
marisa@LF-Lawfirm.com




                                     ii
                                       T ABLE         OF     C ONTENTS
Identity of Parties and Counsel ............................................................................... i
Index of Authorities .............................................................................................. iii
Record References .................................................................................................xi
Statement of the Case ............................................................................................xi
Statement Regarding Oral Argument ....................................................................xii
Issues Presented ...................................................................................................xii
Introduction ............................................................................................................ 1
Statement of Facts ................................................................................................. 2
    I. The Parties .................................................................................................2
    II. Statutory And Regulatory Background ....................................................... 3
         A. The Commission’s Authority ................................................................3
         B. The District’s Authority .......................................................................7
    III. Post Oak’s Application For A Landfill Permit .......................................... 14
    IV. Trial Court Proceedings ........................................................................... 15
Summary of the Argument .................................................................................... 19
Standard and Scope of Review .............................................................................. 21
Argument............................................................................................................. 22
    I. The District’s Substantive Claim Is Not Ripe, And It Is Impermissibly
         Redundant Of A Suit For Judicial Review.................................................22
    II. Because It Did Not Allege A Redressable Injury, The District Lacks
         Standing To Sue. ...................................................................................... 31
    III. The District’s Substantive Claim Is Barred Under The Doctrine Of
         Exclusive (Or, Alternatively, Primary) Jurisdiction. ................................. 36
Prayer ................................................................................................................... 45
Certificate of Service.............................................................................................46
Certificate of Compliance .....................................................................................46
Appendix: Order on the Commission’s Plea to the Jurisdiction




                                                             iii
                                    I NDEX        OF     A UTHORITIES
Cases
Apollo Enters., Inc. v. ScripNet, Inc., 301 S.W.3d 848 (Tex. App.—Austin
    2009, no pet.) ................................................................................................. 37
Bacon v. Tex. Historical Comm’n, 411 S.W.3d 161 (Tex. App.—Austin 2013,
    no pet.) ........................................................................................................... 31
Bexar–Medina–Atascosa Counties Water Control & Improvement Dist. No. 1 v.
    Medina Lake Prot. Ass’n, 640 S.W.2d 778 (Tex. App.—San Antonio
    1982, writ ref’d n.r.e.) ..................................................................................... 23
Blue Cross Blue Shield of Tex. v. Duenez, 201 S.W.3d 674 (Tex. 2006) ................... 38
Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex. 1995) .............................. 23, 32
Brown v. Todd, 53 S.W.3d 297 (Tex. 2001) ...................................................... 31, 32
Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000) .....................36, 38–39
Cervantes v. N.H. Ins. Co., No. 04-12-00722-CV, 2013 WL 3486824 (Tex.
     App.—San Antonio July 10, 2013, pet. denied) (mem. op.) ...................... 26, 28
City of San Antonio v. BSR Water Co., 190 S.W.3d 747 (Tex. App.—San
     Antonio 2005, no pet.) ........................................................................ 22, 26, 38
City of Shavano Park v. Ard Mor, Inc., No. 04-14-00781-CV, 2015 WL
     4554524 (Tex. App.—San Antonio July 29, 2015, no pet. h.) (mem. op.) ....... 31
DPS v. Deputy Sheriff’s Ass’n of Bexar Cnty., No. 04-07-00233-CV, 2007 WL
     3355626 (Tex. App.—San Antonio Nov. 14, 2007, pet. denied) (mem.
     op.) ............................................................................................... 22, 24, 25, 29
Edwards Aquifer Auth. v. Bragg, 21 S.W.3d 375 (Tex. App.—San Antonio
     2000), aff’d, 71 S.W.3d 729 (Tex. 2002)........................................................ 24
Edwards Aquifer Auth. v. Day, 369 S.W.3d 814 (Tex. 2012) .................................... 9
Good Shepherd Med. Ctr., Inc. v. State, 306 S.W.3d 825 (Tex. App.—Austin
     2010, no pet.).................................................................................................. 32
Grand Lodge of the Order of the Sons of Hermann in Tex. v. Curry, 108 S.W.2d
     574 (Tex. Civ. App.—San Antonio 1937, writ ref’d) ....................................... 35
Guitar Holding Co., L.P. v. Hudspeth Cnty. Underground Water Conserv’n
     Dist. No. 1, 263 S.W.3d 910 (Tex. 2008) .......................................................... 9
Hardee v. City of San Antonio, No. 04-07-00740-CV, 2008 WL 2116251 (Tex.
     App.—San Antonio May 21, 2008, no pet.) (mem. op.)...................... 23, 25, 32
Heckman v. Williamson County, 369 S.W.3d 137 (Tex. 2012) ........................... 31, 32
In re Crawford & Co., 458 S.W.3d 920 (Tex. 2015) .................................... 37, 38, 40
                                                            iv
In re Entergy Corp., 142 S.W.3d 316 (Tex. 2004) ................................................... 37
In re Sw. Bell Tel. Co., L.P., 226 S.W.3d 400 (Tex. 2007) ...................................... 39
In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619 (Tex. 2007) ................................. 38, 42
Janek v. Gonzalez, No. 03-11-00113-CV, 2013 WL 1748795 (Tex. App.—
     Austin Apr. 17, 2013, no pet.) (mem. op.) ....................................................... 37
Juliff Gardens, L.L.C. v. TCEQ, 131 S.W.3d 271 (Tex. App.—Austin 2004,
     no pet.) .......................................................................................................... 40
Kelly v. Harris, 331 F.3d 817 (11th Cir. 2003)......................................................... 32
Kinney Cnty. Groundwater Conserv’n Dist. v. Boulware, 238 S.W.3d 452 (Tex.
     App.—San Antonio 2007, no pet.) ................................................................ 22
Kinney v. Palmer, No. 04-07-00091-CV, 2008 WL 2515696 (Tex. App.—San
     Antonio June 25, 2008, no pet.) (mem. op.).................................................... 34
Kuntz v. Khan, No. 03-10-00160-CV, 2011 WL 182882 (Tex. App.—Austin
     Jan. 21, 2011, no pet.) (mem. op.) ...................................................................26
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................ 31
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998)................................... 23
McDaniel v. Tex. Natural Res. Conserv’n Comm’n, 982 S.W.2d 650 (Tex.
     App.—Austin 1998, pet. denied) ................................................................... 40
Patel v. Tex. Dep’t of Licensing & Regulation, No. 12–0657, 2015 WL 3982687
     (Tex. June 26, 2015) ........................................................................... 21, 26, 28
Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439
     (Tex. 1998) ............................................................................................... 22, 23
Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447 (Tex. 2008) ........................ 35
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) ........................................... 19
Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012) .......................................... 22
Save Our Springs Alliance v. City of Austin, 149 S.W.3d 674 (Tex. App.—
     Austin 2004, no pet.) .......................................................................... 25, 26, 29
Sipriano v. Great Spring Waters of Am., Inc., 1 S.W.3d 75 (Tex. 1999) ..................... 9
Smith v. Houston Chem. Servs., Inc., 872 S.W.2d 252 (Tex. App.—Austin
     1994, pet. withdrawn) .................................................................................... 40
Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex.
     2002) ............................................................................................. 22, 36, 37, 39
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) ................. 22
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ................. 21
Thomas v. Long, 207 S.W.3d 334 (Tex. 2006) ............................................. 36–37, 38

                                                            v
Waco ISD v. Gibson, 22 S.W.3d 849 (Tex. 2000) ............................................ 22–23
Warth v. Seldin, 422 U.S. 490 (1975) ............................................................... 31, 32
Young Chevrolet, Inc. v. Tex. Motor Vehicle Bd., 974 S.W.2d 906 (Tex. App.—
   Austin 1998, pet. denied) ................................................................................26

Constitutional Provisions, Statutes, and Session Laws
Tex. Const. art. XVI, § 59 ............................................................................. 2, 8, 12
Tex. Civ. Prac. & Rem. Code:
   ch. 37 ........................................................................................................ xi, 26
   § 51.014(a)(8) ............................................................................................ xi, 18
Tex. Gov’t Code:
   § 2001.003(4) ................................................................................................. 17
   § 2001.003(5) ................................................................................................. 17
   § 2001.051 ...................................................................................................... 17
   § 2001.145 ...................................................................................................... 17
Tex. Health & Safety Code:
   ch. 361 ...................................................................1, 4, 16, 17, 20, 30, 40, 41, 44
   § 361.002 ......................................................................................................... 4
   § 361.003(17) .................................................................................................. 36
   § 361.011(a)–(c) ............................................................................................... 4
   § 361.011(d) ..................................................................................................... 4
   § 361.024(a)..................................................................................................... 6
   § 361.026(1) ..................................................................................................... 4
   § 361.039 ........................................................................................................ 35
   § 361.061....................................................................................................... 2, 5
   § 361.0641................................................................................................... 5, 42
   § 361.067 .................................................................................................... 5, 42
   § 361.068 ..........................................................................................................5
   § 361.069 ..........................................................................................................5
   § 361.081(a) ......................................................................................................5
   § 361.083(a) ................................................................................................ 5, 42
   § 361.089(a) ..................................................................................................... 6
   § 361.095 ....................................................................................................... 44
   § 361.151 .....................................................................................................4, 44
   § 361.151(c).................................................................................................... 44
   § 361.154 ......................................................................................................... 43
   § 361.154(a) ................................................................................................... 44

                                                           vi
   § 361.154(b) ................................................................................................... 44
   § 361.161 ........................................................................................................ 43
   § 361.165(a) .................................................................................................... 36
   § 361.321 .................................................................................................... 17, 19
   § 363.022–.046 ................................................................................................ 4
   § 363.062–.063 ................................................................................................ 4
   § 363.092 ......................................................................................................... 4
   § 363.112(a) .................................................................................................... 11
   § 363.112(d) ............................................................................................... 11, 12
   § 364.012(a).................................................................................................... 12
   § 364.012(b) ................................................................................................... 12
   § 364.012(f) .................................................................................................... 12
Texas Hum. Res. Code:
   § 33.0006 ........................................................................................................ 37
   § 33.002 .......................................................................................................... 37
Tex. Labor Code § 402.001 .................................................................................. 37
Tex. Spec. Dist. Code:
   § 8833.002 ....................................................................................................2, 8
   § 8833.101............................................................................................... 2, 8, 12
   § 8833.102 ....................................................................................................... 2
   § 9009.101 ...................................................................................................... 12
Tex. Util. Code § 31.001(a) ................................................................................... 37
Tex. Water Code:
   § 5.012 ............................................................................................................. 2
   § 5.351 ............................................................................................................ 17
   § 7.302(b) ........................................................................................................ 6
   § 26.0136 .................................................................................................... 3, 41
   § 26.023...................................................................................................... 3, 41
   § 26.121(a)(1)....................................................................................................5
   § 26.127(a) ........................................................................................................3
   § 26.403(a)–(c) .................................................................................................3
   § 26.405(1) .......................................................................................................3
   § 27.003 ............................................................................................................3
   § 27.011 ............................................................................................................3
   § 28.031(a)(3) ...................................................................................................3
   ch. 36 ................................................................................................ 2, 8, 12, 30
   § 36.001(1)....................................................................................................... 9
   § 36.001(2) ...................................................................................................... 8
                                                           vii
    § 36.001(8)(E) .............................................................................................. 8–9
    § 36.0015 ......................................................................................................... 9
    § 36.011(b) ....................................................................................................... 8
    § 36.101(a) .................................................................................................. 9, 10
    § 36.101–.102 ................................................................................................... 9
    § 36.1071(a) ..................................................................................................... 9
    § 36.1071(d) ..................................................................................................... 8
    § 36.113(a) ...................................................................................................... 11
    § 36.113(c)(3) .................................................................................................. 11
    § 36.113(c)(4).................................................................................................. 11
    § 36.113(c)(7) .................................................................................................. 11
    § 36.1132 ......................................................................................................... 11
    § 36.116........................................................................................................... 10
    § 36.116(a) ...................................................................................................... 10
    § 36.116(a)(1) .................................................................................................. 10
    § 36.116(a)(2) ................................................................................................. 10
    § 36.120 ........................................................................................................... 8
    § 36.301–.303 ................................................................................................... 8
    § 36.304 ........................................................................................................... 8
    ch. 49 ................................................................................................. 2, 7, 12, 30
    § 49.001(a)(1) .................................................................................................. 8
    § 49.002 .......................................................................................................... 8
    § 49.066(a) ...................................................................................................... 8
    § 49.181(a) ....................................................................................................... 8
    § 49.182(a) ...................................................................................................... 8
    § 49.231(c)....................................................................................................... 8
    § 49.456(a) ...................................................................................................... 8
    ch. 51 ........................................................................................................ 12, 30
    § 51.121(c) ...................................................................................................... 12
    § 51.121(b)(6).................................................................................................. 12
Act of May 28, 2001, 77th Leg., R.S., ch. 1164, § 1, 2001 Tex. Gen. Laws
    2627 ................................................................................................................ 10
Act of May 28, 2001, 77th Leg., R.S., ch. 965, § 18.01(a)(1), 2001 Tex. Gen.
    Laws 1933 ........................................................................................................ 2
Act of May 27, 2001, 77th Leg., R.S., ch. 966, §§ 2.44, 2.50, 2001 Tex. Gen.
    Laws 1991 ....................................................................................................... 10
Act of May 26, 1999, 76th Leg., R.S., ch. 1141, § 1, 1999 Tex. Gen. Laws
    4035 ................................................................................................................. 2
                                                           viii
Act of May 29, 1997, 75th Leg., R.S., ch. 1066, §§ 3, 5, 1997 Tex. Gen. Laws
    4059.......................................................................................................... 12, 36
Act of May 30, 1993, 73d Leg., R.S., ch. 626, §§ 1.02, 1.08, 1993 Tex. Gen.
    Laws 2350 ....................................................................................................... 12

Rules
30 Tex. Admin. Code:
    §§ 39.401–.425 .................................................................................................5
    § 80.109(a) ..................................................................................................... 17
    § 80.109(b)(5)................................................................................................. 17
    § 293.3(a) ........................................................................................................ 8
    § 293.22(a) ...................................................................................................... 8
    ch. 330 ............................................................................................................. 6
    § 330.3(88)–(90) .............................................................................................. 2
    § 330.3(140)................................................................................................ 6, 42
    § 330.3(148)(A) .............................................................................................. 14
    § 330.3(175) ......................................................................................................3
    § 330.5(a) ....................................................................................................... 14
    § 330.5(a)(1) .................................................................................................... 2
    § 330.23 .......................................................................................................... 12
    § 330.23(d) ..................................................................................................... 12
    §§ 330.57–.65 .................................................................................................. 6
    § 330.61(b)(1) ................................................................................................ 44
    § 330.61(c)(2) .................................................................................................. 6
    § 330.61(d)(3) .................................................................................................. 6
    § 330.61(j)(1)–(4)............................................................................................. 6
    § 330.61(k)(1) .................................................................................................. 6
    § 330.61(k)(3) .................................................................................................. 6
    § 330.63(a).................................................................................................. 6, 42
    § 330.63(b)(4) ...................................................................................................7
    § 330.63(c)(1) ...................................................................................................7
    § 330.63(c)(2) ...................................................................................................7
    § 330.63(d)(1)(B) ..............................................................................................7
    § 330.63(e)........................................................................................................7
    § 330.63(f) ........................................................................................................7
    § 330.63(f)(3)....................................................................................................7
    § 330.171(c)(6) ................................................................................................ 14
    § 330.401(a) ......................................................................................................7
                                                          ix
   § 330.401(b) .....................................................................................................7
   § 330.401(e)......................................................................................................7
   § 330.401(f) ......................................................................................................7
   § 330.403 ..........................................................................................................7
   § 330.405(a) .....................................................................................................7
   § 330.407 ..........................................................................................................7
   § 330.407(c)(3) .................................................................................................7
   § 330.421 ..........................................................................................................7
   § 330.463(a)(2) .................................................................................................7
   § 330.549(a) .................................................................................................... 13
Guadalupe County Groundwater Conservation District Rules:
   R. 1.1(ii)(5) ...................................................................................................... 9
   R. 1.1–10.6 ...................................................................................................... 13
   R. 5.1–5.10 ................................................................................................. 11, 14
   R. 8.1 ................. xi, 13, 15, 16, 17, 19, 20, 27, 29, 30, 32, 33, 34, 35, 36, 41, 42, 43

Other Authorities
13A Wright et al., Federal Practice and Procedure, § 3532.1 (2d ed. 1984) ............ 23
Enrolled Bill Summary, Tex. H.B. 3037, 77th Leg., R.S. (2001) ............................ 10
House Comm. on Natural Resources, Bill Analysis, Tex. H.B. 3037, 77th
   Leg., R.S. (2001) ............................................................................................. 10
Nichol, Ripeness and the Constitution, 54 U. Chi. L. Rev. 153 (1987) ..................... 24
Op. Tex. Atty. Gen. No. GA-1011 (2013) ..............................................................30
Texas Commission on Environmental Quality, Priority Groundwater
   Management Areas and Groundwater Conservation Districts: Report to
   the 84th Texas Legislature, SFR-053/09 (Jan. 2015) ...................................... 10




                                                           x
                           R ECORD R EFERENCES
   In this brief, “CR” refers to the clerk’s record; “1.RR” to the reporter’s record
of November 4, 2014; and “2.RR” to the reporter’s record of June 23, 2015.

                         S TATEMENT       OF THE     C ASE
Nature of the Case:        This is an interlocutory appeal from an order denying a
                           governmental unit’s plea to the jurisdiction. See Tex. Civ.
                           Prac. & Rem. Code § 51.014(a)(8).

Course of Proceedings:     The District sued Post Oak under the Uniform Declara-
                           tory Judgments Act, Tex. Civ. Prac. & Rem. Code ch. 37,
                           seeking a declaration that Post Oak had violated District
                           Rule 8.1 in connection with its pending application for a
                           permit from the Commission for a landfill that, if permit-
                           ted, would be located within the District’s territory.
                           CR.1193–1204 (live petition). The Commission inter-
                           vened, CR.1045–48, and both it and Post Oak filed pleas
                           to the jurisdiction. CR.15–23, 1081–1132. The District
                           moved for partial summary judgment. CR.552–765.

Trial Court:               2nd 25th Judicial District Court, Guadalupe County
                           The Honorable W.C. Kirkendall

Trial Court Disposition:   The trial court denied both jurisdictional pleas and
                           granted the District’s motion for partial summary judg-
                           ment. CR.548–51, 1179–92, 1218. The Commission and
                           Post Oak each timely appealed the denial of the Commis-
                           sion’s plea. CR.1223–25, 1228–31.




                                         xi
              S TATEMENT R EGARDING O RAL A RGUMENT
    This case involves the boundaries of two governmental entities’ authority, a

large number of statutes and rules, and several distinct jurisdictional principles. In
the Commission’s view, this array of factors suggests that oral argument is warranted
and would aid the Court’s decisional process.

                             I SSUES P RESENTED
    The District complains of Post Oak’s failure to provide formal notice of its ap-
plication with the Commission for a landfill permit and seeks a declaration that the
proposed landfill could not operate consistent with a District rule. But the District
received actual notice of Post Oak’s application, and it submitted comments on that
application to the Commission—the state agency empowered to make landfill-per-

mitting decisions after considering the views of interested parties. The Commission
has not yet issued, and may never issue, an order granting Post Oak a permit. If it
does, the District could challenge that final order on judicial review. The issues pre-

sented are:
    1. Whether the District’s substantive declaratory-judgment claim is unripe,
       barred under the doctrine of redundant remedies, or both.

    2. Whether the District failed to establish the redressability component of
       standing with respect to either its procedural claim or its substantive claim.
    3. Whether the District’s substantive claim is barred because it falls within the
       Commission’s exclusive (or, alternatively, primary) jurisdiction.




                                          xii
                               I NTRODUCTION
    Although everyone generates waste, no one wants to live beside a landfill. For

that reason, the Solid Waste Disposal Act grants landfill-permitting authority to the
Commission, an agency with statewide jurisdiction over solid waste disposal, rather
than local water districts authorized to regulate the spacing of, and production from,

water wells within their boundaries. That does not make local concerns irrelevant;
under the Act, the Commission may decide whether to issue a permit for a proposed
landfill only after hearing and considering any such concerns.
    Like other interested parties, the District has participated in the administrative
proceedings through which Post Oak is pursuing a landfill permit, and it will be free
to seek judicial review of any final Commission decision with which it disagrees. But

the administrative proceedings are still ongoing, so whether the Commission will
grant or deny Post Oak’s permit application remains to be seen.
    The District’s premature challenge to Post Oak’s landfill proposal is subject to

dismissal on several grounds. Because no permit has issued, the District’s substan-
tive claim is not ripe, and it is also impermissibly redundant of remedies that the
District could seek on judicial review. Because District rules cannot trump a landfill

permit issued by the Commission, the relief the District seeks would not redress its
alleged injury. And the District’s claim falls within the Commission’s exclusive (or
at least primary) jurisdiction. Accordingly, the Court should reverse the trial court’s

order denying the Commission’s plea to the jurisdiction and render a judgment of
dismissal.
                           S TATEMENT           OF    F ACTS
I. The Parties
    The District “is a groundwater conservation district in Guadalupe County cre-
ated under and essential to accomplish the purposes of Section 59, Article XVI,
Texas Constitution.” Tex. Spec. Dist. Code § 8833.002; see Act of May 26, 1999,

76th Leg., R.S., ch. 1141, § 1, 1999 Tex. Gen. Laws 4035, 4035–36 (reflecting that the
District’s boundaries lie entirely within Guadalupe County). Although the District
may not impose taxes or certain fees, it generally “has the rights, powers, privileges,

functions, and duties provided by the general law of this state, including Chapters 36
and 49[ of the Texas] Water Code.” Tex. Spec. Dist. Code §§ 8833.101, 8833.102.
    The Commission, which assumed the functions of the Texas Natural Resource

Conservation Commission in 2001, is the state agency with “primary responsibility
for implementing the constitution and laws of this state relating to the conservation
of natural resources and the protection of the environment.” Tex. Water Code

§ 5.012; Act of May 28, 2001, 77th Leg., R.S., ch. 965, § 18.01(a)(1), 2001 Tex. Gen.
Laws 1933, 1985. One of its many functions is to issue permits for the construction
and operation of Type I municipal solid waste landfills. Tex. Health & Safety Code
§ 361.061; see 30 Tex. Admin. Code § 330.3(88)–(90) (defining “[m]unicipal solid
waste,” “[m]unicipal solid waste facility,” and “[m]unicipal solid waste landfill
unit”); id. § 330.5(a)(1) (explaining that “[a] Type I landfill unit is the standard land-
fill for the disposal of [municipal solid waste]”).




                                            2
    Post Oak is a private entity that has a pending application with the Commission
for a permit to construct and operate a Type I municipal solid waste landfill within

the District’s territory. See CR.1193, 1206.
II. Statutory And Regulatory Background
    A. The Commission’s Authority
    1. The Commission “has the sole and exclusive authority to set water quality
standards for all water in the state” and “is the agency with primary responsibility
for implementation of water quality management functions.” Tex. Water Code
§§ 26.0136, 26.023; see 30 Tex. Admin. Code § 330.3(175) (confirming that “[w]ater
in the state” includes groundwater). As “the principal authority in the state on mat-
ters relating to the quality of the water in the state,” the Commission is the agency

with which “[a]ll other state agencies engaged in water quality or water pollution
control activities shall co-ordinate [their] activities.” Tex. Water Code § 26.127(a).
    The Legislature has authorized the Commission to exercise its authority over

water quality in a variety of specific contexts. See, e.g., id. §§ 26.403(a)–(c), 26.405(1)
(designating the Commission as “the lead agency for the [Texas Groundwater Pro-
tection Committee],” which “coordinate[s] groundwater protection activities” of

various governmental agencies); id. §§ 27.003, 27.011 (generally requiring Commis-
sion permits for injection wells in order “to maintain the quality of fresh water in the
state”); id. § 28.031(a)(3) (authorizing the Commission to issue permits for mine

shafts if, “with proper safeguards, both ground and surface water can be adequately
protected from pollution”).


                                            3
    2. a. The Solid Waste Disposal Act, Tex. Health & Safety Code ch. 361, is one
such context. It requires the Commission to “consider water pollution control and

water quality” when addressing “matters relating to municipal solid waste manage-
ment.” Id. § 361.011(d). To that end, the Act gives the Commission expansive au-
thority, providing that the agency:
    • “is responsible . . . for the management of municipal solid waste . . . and
      shall coordinate municipal solid waste activities”;
    • “shall accomplish the purposes of [the Act, see id. § 361.002,] by con-
      trolling all aspects of the management of municipal solid waste . . . by
      all practical and economically feasible methods consistent with its pow-
      ers and duties under [the Act] and other law”; and
    • “has the powers and duties specifically prescribed by [the Act] relating
      to municipal solid waste management . . . and all other powers necessary
      or convenient to carry out those responsibilities under [the Act].”
Id. § 361.011(a)–(c); see also id. § 361.026(1) (authorizing the Commission to “pro-

vide educational, advisory, and technical services concerning solid waste manage-
ment to other state agencies”); id. § 361.151 (confirming that the Commission’s au-
thority over solid-waste management is superior to that of counties).

    Other statutes confirm the nature and scope of the Commission’s relevant pow-
ers. The Comprehensive Municipal Solid Waste Management, Resource Recovery,
and Conservation Act, for example, describes the primacy and breadth of the Com-

mission’s authority over the management of municipal solid waste. Id. §§ 363.022–
.046, 363.062–.063, 363.092. And a provision of the Water Code confirms that,




                                           4
“[e]xcept as authorized by the commission, no person may . . . discharge . . . munic-
ipal waste . . . into or adjacent to any water in the state.” Tex. Water Code

§ 26.121(a)(1).
    b. The Solid Waste Disposal Act also provides that the Commission may “re-
quire and issue permits authorizing and governing the construction, operation, and
maintenance of . . . solid waste facilities.” Tex. Health & Safety Code § 361.061. The
Commission “in its discretion may, in processing a permit application, make a sepa-
rate determination on the question of land use compatibility.” Id. § 361.069.
    When a permit is sought, the Commission must notify “the state senator and
representative who represent the area in which the facility is or will be located.” Id.
§ 361.0641. And when a permit application is “administratively complete,” id.

§ 361.068, the Commission “shall mail a copy of the application or a summary of its
contents” to specified officials and health authorities, allowing them to “present
comments and recommendations on the permit application before the commission

acts on the application.” Id. § 361.067; see also id. § 361.081(a) (mandating that the
Commission require permit applicants to provide notice to nearby landowners and
businesses); 30 Tex. Admin. Code §§ 39.401–.425 (Commission rules governing no-

tice). The Act does not require notice of permit applications to be mailed to ground-
water conservation districts (except where a district qualifies as a nearby landowner
or has some other attribute that brings it within the statute’s scope). The Commis-
sion may not “hear testimony in a contested case” absent evidence that “proper
notice of the hearing was given to affected persons.” Tex. Health & Safety Code
§ 361.083(a).
                                          5
    Under the Act, the Commission’s role does not end when it issues a permit. The
agency “may, for good cause, deny or amend a permit it issues or has authority to

issue” for several reasons, including “water pollution.” Id. § 361.089(a); see also
Tex. Water Code § 7.302(b) (providing the grounds on which “the commission may
revoke, suspend, or revoke and reissue a permit”).
    3. The body of Commission rules governing municipal solid waste is volumi-
nous. 30 Tex. Admin. Code ch. 330; see Tex. Health & Safety Code § 361.024(a)
(granting the Commission rulemaking power). Under those rules, any application for
a municipal solid waste landfill permit must satisfy a long list of requirements, see 30
Tex. Admin. Code §§ 330.57–.65, many of which relate to groundwater protection.
See, e.g., id. § 330.61(c)(2), (d)(3) (requiring maps identifying “all known water wells

within 500 feet of the proposed permit boundary” and the “locations of monitor
wells”), 330.61(j)(1)–(4) (requiring reports on “the geology and soils of the proposed
site,” “fault areas located within the proposed site,” “seismic impact zones,” and

“unstable areas”), 330.61(k)(1), (3) (requiring “data about the site-specific ground-
water conditions at and near the site” and a demonstration of how the proposed fa-
cility will comply with storm-water permitting requirements and the Clean Water

Act).
    The permit application must also contain a “site development plan”—that is,
“[a] document, prepared by [a] design engineer, that provides a detailed design with
supporting calculations and data for the development and operation of a solid waste
site.” Id. § 330.3(140). Any such plan must provide for a variety of safeguards, id.
§ 330.63(a), many of which likewise relate to the protection of groundwater. See, e.g.,
                                           6
id. § 330.63(b)(4) (requiring a description of “how all liquids resulting from the op-
eration of solid waste processing facilities will be disposed of in a manner that will

not cause surface water or groundwater pollution”), 330.63(c)(1), (2) (specifying the
requirements for analyses of drainage and flood control), 330.63(d)(1)(B) (requiring
that units be designed to “control and contain spills and contaminated water from
leaving the facility” in a worst-case scenario), 330.63(e) (requiring a geology report
“prepared and signed by a qualified groundwater scientist” that addresses all re-
gional aquifers), 330.63(f)(3) (requiring a “[g]roundwater sampling and analysis
plan” that includes “an analysis of the most likely pathway(s) for pollutant migration
in the event that the primary barrier liner system is penetrated”).
    The Commission’s rules further provide for groundwater monitoring of munic-

ipal solid waste landfills both while they are active and after they have closed. Id.
§§ 330.63(f), 330.401(a), (b), (e), (f); see id. §§ 330.403 (requiring installation of
groundwater monitoring systems), 330.405(a) (requiring “consistent sampling and

analysis procedures”), 330.407, 330.407(c)(3) (describing the detection monitoring
program for Type I landfills, which requires the submission of various categories of
information, including “the groundwater flow rate and direction in the uppermost

aquifer”), 330.421 (providing construction specifications for monitor wells); see also
id. § 330.463(a)(2) (authorizing the Commission’s executive director to increase or
decrease the length of the post-closure care period).
    B. The District’s Authority
    1. Chapter 49 of the Texas Water Code contains “[p]rovisions [a]pplicable to
[a]ll [groundwater conservation d]istricts.” Tex. Water Code ch. 49 (title),
                                          7
§ 49.001(a)(1); see id. § 49.002; Tex. Const. art. XVI, § 59; Tex. Spec. Dist. Code
§ 8833.002. Among other things, it authorizes districts to sue, Tex. Water Code

§ 49.066(a), and reflects the oversight role that the Commission plays with respect
to district functions. See, e.g., id. §§ 49.181(a) (providing that districts may not issue
bonds without authorization from the Commission), 49.182(a) (preventing districts
from altering construction plans for certain projects without Commission approval),
49.231(c) (requiring districts to apply to the Commission for permission to adopt
certain fees), 49.456(a) (preventing districts from filing for bankruptcy without
Commission authorization).
    2. a. Chapter 36 of the Water Code (the other chapter setting forth the District’s
authority, see Tex. Spec. Dist. Code § 8833.101) confirms that the Commission “has

exclusive jurisdiction over the creation of [groundwater conservation] districts,” re-
views their performance, and has the power to dissolve them. Tex. Water Code
§§ 36.001(2), 36.011(b), 36.301–.303, 36.304; see id. §§ 36.1071(d) (requiring “[t]he

commission [to] provide technical assistance to a district during its initial operational
phase”), 36.120 (requiring districts to make certain information available to the
Commission’s executive director upon request); 30 Tex. Admin. Code §§ 293.3(a)

(providing that “[t]he powers and duties of all districts . . . created under the Texas
Constitution, . . . Article XVI, §59, are subject to the continuing right of supervision
of the State of Texas, by and through the commission”), 293.22(a) (setting out “pro-
cedures for commission review of groundwater conservation district . . . noncompli-
ance with requirements of Texas Water Code . . . Chapter 36”); see also Tex. Water


                                            8
Code § 36.001(8)(E) (providing a definition of “[w]aste” of groundwater that ap-
plies “unless such discharge is authorized by permit, rule, or order issued by the

commission under Chapter 26”); District R. 1.1(ii)(5), available at http://gcgcd.org/
(click on “GCGCD Rules”) (last visited Sept. 17, 2015) (same).
    In governing only those districts that have “the authority to regulate the spacing
of water wells, the production from water wells, or both,” Tex. Water Code
§ 36.001(1), Chapter 36 also confirms the nature and function of groundwater con-
servation districts. It authorizes such districts to
          make and enforce rules, including rules limiting groundwater
          production based on tract size or the spacing of wells, to provide
          for conserving, preserving, protecting, and recharging of the
          groundwater or of a groundwater reservoir or its subdivisions in
          order to control subsidence, prevent degradation of water qual-
          ity, or prevent waste of groundwater and to carry out the powers
          and duties provided by this chapter.
Id. § 36.101(a); see id. §§ 36.0015 (using similar language to describe the purpose of
Chapter 36), 36.101–.102 (granting districts rulemaking authority and enforcement
power), 36.1071(a) (specifying the goals that districts must address in their ground-

water management plans); see also Edwards Aquifer Auth. v. Day, 369 S.W.3d 814,
833–36 (Tex. 2012) (discussing the history and purpose of groundwater conservation
districts); Guitar Holding Co., L.P. v. Hudspeth Cnty. Underground Water Conserv’n

Dist. No. 1, 263 S.W.3d 910, 912–13 (Tex. 2008) (same); Sipriano v. Great Spring
Waters of Am., Inc., 1 S.W.3d 75, 79–80 (Tex. 1999) (same); Texas Commission on
Environmental Quality, Priority Groundwater Management Areas and Groundwater

Conservation Districts: Report to the 84th Texas Legislature, SFR-053/09, at 15 (Jan.

                                            9
2015) (map reflecting 100 groundwater conservation districts spread throughout the
State).

    The phrase “prevent degradation of water quality” was added to sections
36.101(a) and 36.116(a) in 2001 along with language confirming districts’ ability to
make and enforce “rules limiting groundwater production based on tract size or the
spacing of wells.” Act of May 28, 2001, 77th Leg., R.S., ch. 1164, § 1, 2001 Tex. Gen.
Laws 2627, 2627; Act of May 27, 2001, 77th Leg., R.S., ch. 966, §§ 2.44, 2.50, 2001
Tex. Gen. Laws 1991, 2012, 2015. The text of section 36.116(a) reflects that prevent-
ing degradation of water quality is something a district may accomplish by regulating
“the spacing of water wells” or “the production of groundwater,” Tex. Water Code
§ 36.116(a)(1), (2), as by ensuring, for instance, that overproduction does not cause

groundwater with a naturally higher saline content to be pulled into another well’s
production zone of fresher water. See also House Comm. on Natural Resources, Bill
Analysis, Tex. H.B. 3037, 77th Leg., R.S. (2001) (stating that the bill amending sec-

tion 36.116 in 2001 “d[id] not expressly delegate any additional rulemaking author-
ity”); Enrolled Bill Summary, Tex. H.B. 3037, 77th Leg., R.S. (2001), available at
http://www.capitol.state.tx.us/BillLookup/Text.aspx?LegSess=77R&Bill=HB3037

(under “Additional Documents” at bottom of page) (last visited Sept. 17, 2015)
(adding that the bill merely “clarif[ied] a groundwater conservation district’s rule-
making authority to regulate water well spacing and production, expanding the pur-
pose of such regulation to include the prevention of interference between wells and
the prevention of water quality degradation and establishing guidelines for such reg-
ulation”).
                                         10
    b. Consistent with the scope of their authority, groundwater conservation dis-
tricts are authorized to require permits “for the drilling, equipping, operating, or

completing of wells or for substantially altering the size of wells or well pumps.” Tex.
Water Code § 36.113(a) (further reflecting that districts’ permitting authority en-
compasses proposed “change[s] in the withdrawal or use of groundwater during the
term of a permit”); see District R. 5.1–5.10 (governing District permits). The catego-
ries of information that districts may require applicants for such permits to provide
further illuminates the scope of Chapter 36. See, e.g., Tex. Water Code
§ 36.113(c)(3), (4), (7) (requiring “a statement of the nature and purpose of the pro-
posed use and the amount of water to be used for each purpose,” “a water conser-
vation plan or a declaration that the applicant will comply with the district’s man-

agement plan,” and “a drought contingency plan”); see also id. § 36.1132 (reflecting
that districts’ issuance of permits should be based on modeled available groundwa-
ter).

    c. Chapter 36 gives the District no authority over municipal solid waste. In this
respect, the District’s authority contrasts with that of municipalities and counties,
which are authorized to designate areas within their boundaries “in which the dis-

posal of municipal or industrial solid waste will not be prohibited.” Tex. Health &
Safety Code § 363.112(a); see id. § 363.112(d) (providing that the Commission “may
not grant an application for a permit to process or dispose of municipal or industrial
solid waste in an area in which the processing or disposal of municipal or industrial
solid waste [was timely] prohibited by an ordinance or order authorized by Subsec-


                                          11
tion (a)”); see also id. §§ 364.012(a), (b) (provisions of the County Solid Waste Con-
trol Act authorizing a county to “prohibit the disposal of municipal or industrial solid

waste in the county if the disposal of the municipal or industrial solid waste is a threat
to the public health, safety, and welfare,” so long as it timely designates “the area of
the county in which municipal or industrial solid waste disposal is not prohibited”),
364.012(f) (limiting the Commission’s authority in the same manner as section
363.112(d)); 30 Tex. Admin. Code § 330.23 (governing relationships with other gov-
ernmental entities, including municipal and county governments but excluding the
District, compare 30 Tex. Admin. Code § 330.23(d), with Act of May 29, 1997, 75th
Leg., R.S., ch. 1066, §§ 3, 5, 1997 Tex. Gen. Laws 4059, 4059).
    Defined by Chapters 36 and 49 of the Water Code, Tex. Spec. Dist. Code

§ 8833.101, the District’s authority also contrasts with that of other districts created
under article 16, section 59 of the Texas Constitution. Some such districts’ powers
include, for instance, those granted by Chapter 51 of the Water Code. E.g., id.

§ 9009.101 (Cade Ranch Water Control and Improvement District No. 1 of Galves-
ton County); Act of May 30, 1993, 73d Leg., R.S., ch. 626, §§ 1.02, 1.08, 1993 Tex.
Gen. Laws 2350, 2351, 2356 (Edwards Aquifer Authority); see Tex. Water Code

§ 51.121(b)(6), (c) (authorizing water control and improvement districts to “accom-
plish[] by any practical means” a range of objectives, including “the protection,
preservation, and restoration of the purity and sanitary condition of water within the
state”); see also 30 Tex. Admin. Code § 330.549(a) (prohibiting Type I landfills “on
the recharge zone of the Edwards Aquifer”).


                                           12
   3. The District’s rules total less than 50 pages. See District R. 1.1–10.6. The ap-
plicable version of District Rule 8.1 (the rule at the center of this dispute, see

CR.1193) contains three sentences:
         [1] All persons generating, transporting, disposing, applying, or
         otherwise managing substances defined under state or federal law
         as solid, hazardous, or radioactive waste, or as sludge, must fol-
         low any and all applicable federal, state, and local environmental
         statu[t]es, requirements, and regulations, including, but not lim-
         ited to those imposed under the Solid Waste Disposal Act
         (RCRA), the Public Health Service Act (the Safe Drinking Water
         Act), the Federal Water Pollution Control Act (the Clean Water
         Act), the National Environmental Policy Act, the Atomic Energy
         Act and the Low-Level Radioactive Waste Policy Act, as those
         statu[t]es, requirements or regulations are administered by the
         appropriate agency, including but not limited to the Texas Rail-
         road Commission, the Texas Commission on Environmental
         Quality , the Texas Department of Health, or their successors,
         and the Environmental Protection Agency.

         [2] In the event that applicable statutes, requirements, or regula-
         tions require that the person generating, transporting, applying,
         disposing or otherwise managing a waste or a sludge obtain a per-
         mit from an agency, and where those activities occur within the
         boundaries of the District, notice of the application must be pro-
         vided to the District by the applicant within ten days of the date
         of application.

         [3] In no event may waste or sludge be permitted to be applied in
         any manner in any outcrop area of any aquifer within the [Dis-
         trict].
CR.577–78 (line breaks added).




                                         13
III. Post Oak’s Application For A Landfill Permit
    Post Oak applied to the Commission for a Type I municipal solid waste landfill

permit and an accompanying land-use compatibility determination for a location
within the District’s territory. CR.605–765. The application indicates that the pro-
posed landfill would accept “certain special waste,” CR.77; see CR.647–51, and the

definition of “[s]pecial waste” includes certain exempt hazardous waste. 30 Tex.
Admin. Code § 330.3(148)(A). That observation does not, however, change the
character of the Type I municipal solid waste landfill permit Post Oak requested. See

id. §§ 330.5(a), 330.171(c)(6) (reflecting that Type I municipal solid waste facilities
may receive special waste). Although it allegedly never received formal notice of Post
Oak’s applications, CR.1197, 1200, the District became aware of each in time to
lodge objections with the Commission. CR.29, 38, 54, 61–74, 1106–29, 1198–1200;
1.RR.8.
    A permit from the Commission is not the only type of permit needed for a Type
I municipal solid waste landfill. Post Oak indicated that it would seek permits from
several other entities, including the District. CR.109–11. But consistent with the Dis-
trict’s regulatory purview, the permits from the District would be for nothing more

than “[t]he drilling of a water well on the site . . . and the drilling of monitoring
wells.” CR.109; see District R. 5.1–5.10 (addressing the types of permits the District
issues).




                                          14
IV. Trial Court Proceedings
    A. After submitting its comments to the Commission, the District filed suit un-

der the Uniform Declaratory Judgments Act against Post Oak even though the Com-
mission has not issued, and may never issue, a permit for the proposed landfill.
CR.4–14 (original petition); CR.1193–1204 (live petition); see CR.1206, 1.RR.5. At a

hearing, the District’s attorney confirmed that Post Oak’s permit application was
the impetus for the suit and argued that a Commission permit authorizing the landfill
“is precisely the type of situation that the Groundwater District rules were intended

to prohibit.” 1.RR.5.
    The District’s original petition alleged “two simple claims,” CR.463, one pro-
cedural and one substantive. See CR.4–14. Assuming the live petition retained it, the
District’s procedural claim is that Post Oak failed to provide the District notice of its
permit application, in alleged violation of the second sentence of Rule 8.1. CR.1197,
1200. The District’s substantive claim is that the final sentence of Rule 8.1 prohibits
operation of a landfill at the proposed site. CR.1201; see CR.469 (the District’s as-
sertion that “Post Oak’s proposal to dispose of solid waste ‘within the outcrop area
of the Carrizo-Wilcox recharge zone’ contravenes the District’s Rule 8.1” (quoting

Post Oak’s permit application, CR.680)).
    Post Oak filed a plea to the jurisdiction arguing that, because the Commission
had not yet issued the requested permit, the District’s claim was not ripe and the

District had neither been injured nor exhausted its administrative remedies. CR.15–
23. Post Oak later filed an answer that reiterated those jurisdictional objections.
CR.157–58 (asserting, as defenses, that Rule 8.1 sought to exercise powers beyond

                                           15
those granted to the District by the Texas Constitution and Water Code, that the
Solid Waste Disposal Act preempted Rule 8.1, and that the District had not ex-

hausted its administrative remedies); see also CR.766–69 (Post Oak’s amended an-
swer adding constitutional defenses); CR.1030–44 (Post Oak’s original counterclaim
(which was later non-suited, CR.1221–22) based on alleged constitutional viola-
tions).
    Before responding to Post Oak’s plea, the District moved for partial summary
judgment, asking the trial court to declare that Post Oak had violated Rule 8.1’s pro-
cedural and substantive requirements. CR.25–156 (original motion); CR.552–765
(amended motion reserving the issues of “civil penalties, costs, attorney’s fees, in-
terest on fees, injunctive relief,” and other unspecified relief for later resolution,

CR.553 n.1); but see CR.1200–03 (amended petition dropping the District’s request
for civil penalties). Post Oak responded, again asserting that the trial court lacked
jurisdiction and alternatively contending that the District’s motion for partial sum-

mary judgment should be denied. CR.278–320, 771–971 (original and amended re-
sponses); see also CR.502–16, 985–1006 (the District’s replies to Post Oak’s original
and amended responses). In support of the latter contention, Post Oak submitted

evidence that it argues defeats the District’s substantive claim on the merits.
CR.1017 (engineer’s affidavit stating that “the operation of [Post Oak’s] proposed
landfill will not permit waste or sludge to be applied in any manner in any outcrop
area of an aquifer within the . . . District”).
    The District also responded to Post Oak’s plea. CR.490–501. In that filing, the
District acknowledged that if the Commission “convene[d] a contested-case hearing
                                            16
regarding Post Oak’s [permit] application, the District may exercise its right to par-
ticipate in that hearing as an affected person. If [the Commission] grants Post Oak a

permit, then, the District may exhaust its administrative remedies and seek judicial
review of that agency decision.” CR.496; see Tex. Gov’t Code §§ 2001.003 (4), (5),
2001.051, 2001.145; Tex. Health & Safety Code § 361.321; Tex. Water Code § 5.351;
30 Tex. Admin. Code § 80.109(a), (b)(5). But after a hearing, see CR.522, the trial
court denied Post Oak’s plea, reasoning that a declaratory-judgment suit was a
proper means for the District to enforce Rule 8.1 and rejecting Post Oak’s preemp-
tion argument. CR.548–51.
    B. Citing its “duty and responsibility to administer the Texas Solid Waste Dis-
posal Act,” the Commission intervened, asserting that “it is the responsibility of

[the Commission], . . . not the District, to determine whether or not the proposed
location of the landfill is proper” and confirming that “[the Commission’s] decision
is subject to judicial review.” CR.1046; see CR.1133–36 (amended intervention peti-

tion); CR.1064–70 (the District’s unsuccessful motion to strike the Commission’s
intervention).
    The Commission then filed a plea to the jurisdiction that also addressed the Dis-

trict’s and Post Oak’s summary-judgment contentions. CR.1081–1129; CR.1130–32
(supplement). In this filing, the Commission asserted that the District lacked statu-
tory authority to control whether Post Oak could operate a landfill at the proposed
location, asserting exclusive (or at least primary) jurisdiction over the landfill-per-
mitting process. CR.1082–97. The Commission also asserted that the District’s suit


                                          17
was not ripe because Post Oak’s permit application might be denied by the Commis-
sion, in which case the proposed landfill would never be constructed. CR.1097–99;

see CR.1146–65 (the District’s response).
    C. In a twelve-page order, the trial court granted the District’s motion for partial
summary judgment and rejected the arguments presented in the Commission’s plea.
CR.1179–88; see also CR.1188–90 (rejecting Post Oak’s constitutional assertions).
Although the order stated that the Commission had granted Post Oak’s permit ap-
plication, CR.1180, that statement was—and remains—inaccurate. In a letter to the
trial court requesting a ruling on its plea, the Commission noted that its Executive
Director had merely “recommended that Post Oak be issued a permit.” CR.1206.
The letter went on to explain the additional hurdles that Post Oak would need to

clear before obtaining a permit, adding that “[i]t is entirely possible that the Com-
missioners ultimately will decline to issue Post Oak a permit. Alternatively, it is pos-
sible that the permit will be issued, but under terms that are satisfactory to the [Dis-

trict].” CR.1206.
    Several months later, the trial court held a hearing on the Commission’s plea and
the District’s motion to strike, 2.RR.4–16, and denied them both. CR.1218, 1220.

Post Oak non-suited its constitutional counterclaims, CR.1221–22, and both it and
the Commission timely appealed the trial court’s order denying the Commission’s
plea. CR.1223–25, 1228–31; see Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).




                                          18
                     S UMMARY        OF THE      A RGUMENT
    An appellate court may “choose among threshold grounds for denying audience

to a case on the merits.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999).
Several such grounds exist here.
    1. The District’s substantive claim is not ripe. That claim requests a declaration

that operation of Post Oak’s proposed landfill would violate District Rule 8.1, and it
is expressly linked to Post Oak’s pursuit of a landfill permit from the Commission.
The District admits that, if the Commission were to issue such a permit, it would be
able to challenge that final decision on judicial review, and it is undisputed that the
landfill project could not move forward without a Commission permit. The District
would have a ripe claim only if the underlying administrative proceedings result in a

final Commission order granting Post Oak’s requested permit, and the District
would be free to pursue that claim, after exhausting its administrative remedies, on
judicial review.

    No such claim could be a proper part of this declaratory-judgment suit. It could
be litigated only in a separate suit authorized by section 361.321 of the Solid Waste
Disposal Act and governed by the Administrative Procedure Act. And because such

a suit would allow the District to seek full relief on the substantive claim it attempted
to raise here, this declaratory-judgment suit is jurisdictionally barred under the doc-
trine of redundant remedies.

    2. Because the District failed to allege a redressable injury with respect to either
its procedural claim or its substantive claim, its entire declaratory-judgment suit
should be dismissed for lack of standing.
                                            19
    Assuming it is even still part of the case, the District’s procedural claim chal-
lenges Post Oak’s alleged failure to notify the District of its permit application. But

it is undisputed that the District received actual notice of that application in time to
file comments with the Commission, and its live petition requests no relief with re-
gard to that claim. For each of these reasons, a judgment in the District’s favor on
its putative procedural claim would not give the District any relief beyond what it has
already obtained outside of court.
    Albeit for different reasons, the District’s substantive claim is likewise not re-
dressable. To the extent Post Oak argues it is ripe, that claim depends on the notion
that application of District Rule 8.1 would prevent Post Oak’s landfill project from
moving forward even if Post Oak obtained a permit from the Commission. But under

the relevant statutes, the District has no authority over solid-waste disposal or to
prevent degradation of groundwater by any means other than regulating the spacing
of or production from water wells. Because a District rule could therefore not pre-

vent action authorized by a landfill permit from the Commission, granting the Dis-
trict full relief on its substantive claim regarding the import of District Rule 8.1 would
not redress its alleged injury flowing from the anticipated operation of Post Oak’s

proposed landfill.
    3. The District’s substantive claim also falls within the Commission’s exclusive
jurisdiction. The Solid Waste Disposal Act creates a detailed regulatory scheme un-
der which the Commission is authorized to grant or deny landfill permits such as the
one sought by Post Oak, and any Commission action under that scheme may be made


                                           20
only after detailed consideration of the very groundwater issues that animate the Dis-
trict’s concerns. When considering whether a claim falls within an agency’s exclu-

sive jurisdiction, courts look to the substance of a plaintiff’s claim, not the plaintiff’s
characterization of its claim. Here, the District’s substantive claim is expressly tied
to Post Oak’s request for a permit from the Commission, and as already noted, that
claim could prevent operation of the proposed landfill only by preventing Post Oak
from obtaining a Commission permit.
    Alternatively, the District’s substantive claim falls within the Commission’s pri-
mary jurisdiction. The Commission is staffed with experts trained to apply the de-
tailed requirements of the Solid Waste Disposal Act and related administrative rules
when deciding whether to grant permits for municipal solid waste landfills, and al-

lowing the Commission to fulfill that statutory function furthers the legislative ob-
jective of decisional uniformity in an area prone to local bias. For each of these rea-
sons, the Court should reverse the trial court’s order denying the Commission’s plea

to the jurisdiction and render a judgment of dismissal.
                  S TANDARD         AND    S COPE     OF   R EVIEW
    Whether a trial court has subject-matter jurisdiction is a question of law that the

Court reviews de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004); see Patel v. Tex. Dep’t of Licensing & Regulation, No. 12–0657, 2015 WL
3982687, at *5 (Tex. June 26, 2015) (reflecting the jurisdictional nature of standing,
ripeness, and the redundant-remedies doctrine); Subaru of Am., Inc. v. David McDa-
vid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002) (same, for exclusive jurisdiction).


                                            21
Although the doctrine of primary jurisdiction is prudential, rather than jurisdic-
tional, it is properly raised in an interlocutory appeal following the denial of a plea to

the jurisdiction and is likewise subject to de novo review. Subaru, 84 S.W.3d at 220,
222; City of San Antonio v. BSR Water Co., 190 S.W.3d 747, 757 n.3 (Tex. App.—
San Antonio 2005, no pet.); see CR.1096–97 (the Commission’s plea raising this is-
sue).
    Because defects in subject-matter jurisdiction cannot be waived, appellants are
not limited to the arguments raised in their pleas. Rusk State Hosp. v. Black, 392
S.W.3d 88, 94–95 & n.3 (Tex. 2012) (disapproving of Kinney Cnty. Groundwater Con-
serv’n Dist. v. Boulware, 238 S.W.3d 452, 461 (Tex. App.—San Antonio 2007, no
pet.), and other like decisions); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 445 (Tex. 1993). They may raise additional jurisdictional arguments for resolu-
tion on appeal. Id.
                                    A RGUMENT

I. The District’s Substantive Claim Is Not Ripe, And It Is Impermissibly
   Redundant Of A Suit For Judicial Review.
    A. 1. Ripeness “is a threshold issue that implicates subject matter jurisdiction”

and “emphasizes the need for a concrete injury.” Patterson v. Planned Parenthood of
Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998); accord DPS v. Deputy
Sheriff’s Ass’n of Bexar Cnty., No. 04-07-00233-CV, 2007 WL 3355626, at *2 (Tex.

App.—San Antonio Nov. 14, 2007, pet. denied) (mem. op.). A case is not ripe when
its resolution depends on contingent or hypothetical facts, or upon events that have
not yet, and may never, come to pass. Waco ISD v. Gibson, 22 S.W.3d 849, 852 (Tex.


                                           22
2000); Patterson, 971 S.W.2d at 442–43 (citing, e.g., 13A Wright et al., Federal Prac-
tice and Procedure, § 3532.1, at 130 (2d ed. 1984)); Hardee v. City of San Antonio,

No. 04-07-00740-CV, 2008 WL 2116251, at *1 (Tex. App.—San Antonio May 21,
2008, no pet.) (mem. op.); f; see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928
(Tex. 1998) (observing that “the ripeness doctrine conserves judicial time and re-
sources for real and current controversies, rather than abstract, hypothetical, or re-
mote disputes”).
    The ripeness doctrine applies in any suit, including one seeking a declaratory
judgment. As the Court confirmed in Hardee, “[a] declaratory judgment is appropri-
ate only if there is a justiciable controversy about the rights and status of the parties
and the declaration will resolve the controversy.” 2008 WL 2116251, at *1. “To con-

stitute a justiciable controversy, there must exist a real and substantial controversy
involving genuine conflict of tangible interests and not merely a theoretical dispute.”
Bexar–Medina–Atascosa Counties Water Control & Improvement Dist. No. 1 v. Medina

Lake Prot. Ass’n, 640 S.W.2d 778, 779–80 (Tex. App.—San Antonio 1982, writ ref’d
n.r.e.) (quoted in Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995)).
    Ripeness is especially important in the administrative context. The doctrine

“prevents courts from entangling themselves in abstract disagreements over admin-
istrative policies while at the same time serving to protect the agencies from judicial
interference until an administrative decision has been formalized and its effects felt
in a concrete way by the challenging parties.” Patterson, 971 S.W.2d at 443 (internal
quotation marks omitted); see also id. (quoting the statement in Nichol, Ripeness and
the Constitution, 54 U. Chi. L. Rev. 153, 178 (1987), that the ripeness doctrine “allows
                                           23
the courts to postpone interfering when necessary so that other branches of govern-
ment . . . may perform their functions unimpeded”). In “generally preclud[ing] ju-

dicial review of an administrative action that is not final,” the ripeness doctrine thus
avoids prematurely interrupting agency proceedings, promotes judicial economy,
sustains respect for the agency’s administrative process, and protects the agency’s
autonomy. Edwards Aquifer Auth. v. Bragg, 21 S.W.3d 375, 380 (Tex. App.—San An-
tonio 2000), aff’d, 71 S.W.3d 729 (Tex. 2002).
    Several cases illustrate proper application of these principles. In Deputy Sheriff’s
Association, for instance, this Court considered a claim that certain peace officers fell
within a statutory exception to investigation by the Texas Department of Public
Safety. 2007 WL 3355626, at *1–2. After a sheriff issued a letter stating that one of

the conditions necessary to invoke the exception had not been satisfied, an associa-
tion acting on the officers’ behalf sought a declaration that the condition had in fact
been satisfied. Id. at *2.

    In its ripeness analysis, the Court began by noting that, although “the Depart-
ment has the authority to conduct investigations of alleged violations of [the stat-
ute],” it had “not concluded its investigation. Whether the Department will reach

an adverse decision against the officers in question, impose civil penalties, or refer
the matter for criminal prosecution is unknown at this time.” Id. The Court further
explained that the association’s claim “presuppose[d] that (1) the Department will
conclude the officers in question do not qualify for the [statutory] exception and
(2) the Department will take actions to preclude the off-duty employment of the of-
ficers.” Id. at *3.
                                           24
      Rejecting the association’s reliance on the sheriff’s letter, the Court concluded
that “the Department is not necessarily bound by the Sheriff’s determination of the

facts” and that “there [wa]s no way to predict what determination, if any, the De-
partment w[ould] reach. Consequently, the relief that the Association seeks, at this
point, would be based on hypothetical or contingent events that may not occur.” Id.
Accordingly, the association’s claim was not ripe. Id.; see also Hardee, 2008 WL
2116251, at *3 (finding a lack of ripeness where a defendant city had neither been
given the opportunity to make a final determination regarding the applicability of
land-use regulations nor issued or denied any land-use permits).
      A decision from the Third Court of Appeals is also instructive. In Save Our
Springs Alliance v. City of Austin, the plaintiffs claimed that a city was approving de-

velopment projects in violation of an ordinance and sought to bar the city from grant-
ing permits for those projects. 149 S.W.3d 674, 679 (Tex. App.—Austin 2004, no
pet.). The city argued that the claims were not ripe “because they were not based on

the application of the [o]rdinance to any property or development permit.” Id. at
679–80. Although developers had submitted permit applications, and a committee
consisting of city staff members had approved the applications, only the City zoning

committee had final authority to issue permits, and it had not yet done so. Id. at 684–
85.
      The court found that, absent issuance of permits, the plaintiffs’ claims were not
ripe. Id. at 685. It explained that
           [t]he individual and particular nature of th[e applicable] statutory
           scheme [governing which ordinances applied to pending devel-

                                           25
          opment applications, see id. at 678,] requires that individual per-
          mits be issued or denied for a controversy to be ripe for adjudica-
          tion. Otherwise, a court would be ruling on a hypothetical appli-
          cation of land-use regulations to plats and interfering with the
          functions of land-use regulatory agencies before they would have
          the opportunity to perform those functions themselves.
Id. at 684. The Court further noted that “because a grant of a permit by the [c]ity
does not automatically result in immediate development and [the plaintiffs] would
have ample opportunity in such case to challenge the granted permit, they will not
suffer any additional hardship by waiting until a permit is granted.” Id. at 685; cf.
BSR Water Co., 190 S.W.3d at 755 (finding ripeness where the alleged breach of an
agreement gave rise to an injury independent of the Commission’s future decision

about whether to grant a certificate of convenience and necessity).
    2. Under the redundant-remedies doctrine, “the power of courts to issue declar-
atory judgments . . . in the face of administrative proceedings is limited.” Kuntz v.

Khan, No. 03-10-00160-CV, 2011 WL 182882, at *4 (Tex. App.—Austin Jan. 21,
2011, no pet.) (mem. op.). A court “will not entertain an action brought under the
[Uniform Declaratory Judgments Act] when the same claim could be pursued
through different channels.” Patel, 2015 WL 3982687, at *6 (addressing a situation
in which judicial review had not yet been sought, see id. at *2). Accordingly, “‘[w]hen
a statute provides a method for attacking an agency order, a declaratory judgment

action directed at that order will not lie.’” Cervantes v. N.H. Ins. Co., No. 04-12-
00722-CV, 2013 WL 3486824, at *2 (Tex. App.—San Antonio July 10, 2013, pet.
denied) (mem. op.) (quoting Young Chevrolet, Inc. v. Tex. Motor Vehicle Bd., 974
S.W.2d 906, 911 (Tex. App.—Austin 1998, pet. denied)).

                                          26
    B. 1. The District’s substantive claim—that it would be injured by Post Oak’s
construction and operation of the proposed landfill—is not ripe. That claim is the

focus of the live petition, which complains at the outset “of [Post Oak’s] pursuit of
a landfill permit, proposing construction and operation of a landfill in Guadalupe
County in violation of [the third sentence of] the District’s Rule 8.1,” CR.1193, and
later confirms that the District is “seeking a declaration that the District’s Rule 8.1
prohibits Post Oak from operating a waste disposal facility at the proposed site.”
CR.1195; see CR.1201 (request for declaratory relief); CR.1202 (prayer).
    The District’s claim depends on the Commission’s hypothetical issuance of a
landfill permit—an event that has not yet occurred and may never occur. As the Dis-
trict’s attorney explained in the trial court, the proposed landfill
          has not been permitted. It’s still being reviewed by [the Commis-
          sion]; but were it to be permitted, it would allow for construction
          of a landfill, and for this landfill to accept . . . a variety of different
          types of waste [including sludge]. And the facility is proposed to
          be located on the outcrop of [the] Carrizo-Wilcox Aquifer. So
          this is precisely the type of situation that the Groundwater Dis-
          trict rules were intended to prohibit.
1.RR.5. Of course, if the Commission does not issue the requested permit, Post Oak
will be unable to build or operate the proposed landfill, so there will be no occasion
for a court to decide whether such a hypothetical landfill would run afoul of District
Rule 8.1. This state of affairs describes an unripe claim.
    2. The District’s substantive claim is also barred under the doctrine of redundant
remedies. Because a successful suit for judicial review of a final Commission order

granting a permit would give the District full relief on its substantive declaratory-

                                              27
judgment claim, see CR.1193, 1202, that claim is impermissibly redundant. See Patel,
2015 WL 3982687, at *6; Cervantes, 2013 WL 3486824, at *2. Dismissal of the Dis-

trict’s substantive claim would be appropriate on this basis as well.
    C. Neither the trial court’s reasoning nor the arguments that the District pre-
sented below can save its substantive claim from dismissal.
    1. The trial court appears to have misunderstood the status of Post Oak’s request
for a landfill permit. In its order on the District’s motion for partial summary judg-
ment, the court purported to “take[] judicial knowledge that [the Commission]
granted Post Oak a permit to construct and operate [Post Oak’s] Proposed Landfill.”
CR.1180. That statement was inaccurate when made, and it remains inaccurate to-
day. See 1.RR.5 (the District’s confirmation that the proposed landfill “has not been

permitted”). As the Commission explained in a letter to the trial court, the Commis-
sion’s executive director has merely recommended that the permit be issued, and
that recommendation does not mean that a permit will issue. The next step
          is for a contested case hearing to be held at the State Office of
          Administrative Hearings[, after which] . . . the administrative law
          judges . . . will issue a proposal for decision . . ., which the TCEQ
          Commissioners will then consider. . . . “[O]nly the TCEQ Com-
          missioners—not the [Commission’s executive director] and not
          the [administrative law judges]—can order the issuance of the
          permit Post Oak has requested, and the Commissioners are not
          bound by the recommendations of either the [executive director]
          or the [administrative law judges].
CR.1206; see CR.1208 (Post Oak’s letter asking the Commission to refer the matter
to the State Office of Administrative Hearings).



                                           28
    The recommendation of the Commission’s executive director is thus analogous
to the sheriff’s letter in Deputy Sheriff’s Association, 2007 WL 3355626, at *2–3, and

the staff-level approvals in Save Our Springs, 149 S.W.3d at 684–85, neither of which
established a ripe claim. By its own admission, the District will have an opportunity
not only to participate in the upcoming contested-case hearing and exhaust its ad-
ministrative remedies, but also to challenge, on judicial review, any final Commission
order granting Post Oak a permit. CR.496. If such an order is made, then—and only
then—would the District have a ripe claim that could be resolved on judicial review.
See Save Our Springs, 149 S.W.3d at 685. Because that claim would be pursued in a
new and separate action, the Court should dismiss the District’s substantive claim
in this declaratory-judgment suit.

    2. In the trial court, the District argued that the Commission had “mischarac-
terized the District’s claims,” asserting that “the District is seeking a declaration of
the rights of the parties under its Rule 8.1,” rather than asserting “a challenge to an

as-yet-unissued solid waste disposal permit.” CR.1148. The trial court accepted this
argument. In its order denying Post Oak’s plea, it stated that the District “is not
seeking to challenge any [Commission] decision or order” but is rather complaining

of “Post Oak’s failure to comply with the District’s own Rule 8.1” and found the
suit “undoubtedly ripe” because “Post Oak has clearly indicated [its] intention to
build a waste disposal site and has not attempted any compliance with the District’s
rules.” CR.548, 550–51; see also CR.1162–64 (the District’s argument on ripeness).
    But as already noted, the live petition specifically references Post Oak’s permit
application, CR.1193, and a statement of the District’s trial counsel confirms that the
                                          29
application is what led the District to sue. 1.RR.5. Neither of those observations
should be surprising; if the District could prevent the Commission from issuing a

permit before the administrative process has run its course, it would achieve its ob-
jective of ensuring that the landfill project does not move forward.
    The District’s and trial court’s view that the District could enforce Rule 8.1 to
achieve that result regardless of whether the Commission issues a permit rests on a
misunderstanding of the law. Compare CR.1153 (stating that the Solid Waste Dis-
posal Act and Chapter 36 of the Water Code “grant [the Commission] and the Dis-
trict overlapping authority with regard to protection of water quality from solid waste
disposal activities”) and CR.1156–57 (citing Texas Attorney General Opinion GA-
1011 (2013), which concerned a water control and improvement district that was

granted powers under Water Code Chapters 49 and 51 (rather than Chapters 49 and
36)), with supra pp. 3–12 (citing the statutory provisions that define the Commis-
sion’s and the District’s distinct spheres of authority and reflect the District’s com-

plete lack of authority over municipal solid waste disposal).
    In any event, even assuming Rule 8.1 would apply to Post Oak’s proposed land-
fill, it could not trump a Commission permit, so “advising [the parties] of their rights

under Rule 8.1” would not “conserve time and resources.” CR.1163; see infra Part
II.B.2. Moreover, the District’s argument that the Solid Waste Disposal Act does
not limit the District’s powers, e.g., CR.1115, is unavailing because the District’s
powers do not include the ability to say where or how a landfill permitted by the
Commission may or may not be located or operate. Accordingly, to avoid requesting


                                          30
an impermissible advisory opinion, the District would have to challenge the propri-
ety of a permit, and it may do so (assuming the Commission issues a permit) only

after exhausting its administrative remedies and suing for judicial review.
II. Because It Did Not Allege A Redressable Injury, The District Lacks
    Standing To Sue.
    A. The doctrine of standing “serves to safeguard the separation of powers by
ensuring that the judiciary does not encroach upon the executive branch by rendering
advisory opinions, decisions on abstract questions of law that do not bind the par-
ties.” Bacon v. Tex. Historical Comm’n, 411 S.W.3d 161, 174 (Tex. App.—Austin
2013, no pet.). To establish standing under the Texas Constitution, a plaintiff must
allege “a concrete injury to [itself] and a real controversy between the parties that
will be resolved by the court.” Heckman v. Williamson County, 369 S.W.3d 137, 154
(Tex. 2012); accord City of Shavano Park v. Ard Mor, Inc., No. 04-14-00781-CV, 2015
WL 4554524, at *4 (Tex. App.—San Antonio July 29, 2015, no pet. h.) (mem. op.).
When addressing this question, Texas courts often “look to the similar federal stand-
ing requirements for guidance.” Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001); see
Heckman, 369 S.W.3d at 154 (noting that Texas standing doctrine “parallels the fed-

eral test for Article III standing” articulated in Lujan v. Defenders of Wildlife, 504
U.S. 555, 560–61 (1992)).
    One essential element of standing requires a plaintiff to “allege facts from which

it reasonably could be inferred,” Warth v. Seldin, 422 U.S. 490, 504 (1975), that it is
“likely, as opposed to merely speculative, that the [plaintiff’s alleged] injury will be
redressed by a favorable decision.” Defenders of Wildlife, 504 U.S. at 561 (internal

                                          31
quotation marks omitted); see Good Shepherd Med. Ctr., Inc. v. State, 306 S.W.3d 825,
836 (Tex. App.—Austin 2010, no pet.). To satisfy this requirement, the plaintiff’s

allegations must reflect a “substantial probability” that the relief requested will re-
dress the alleged injury, Warth, 422 U.S. at 504, and the inquiry proceeds on a claim-
by-claim basis. See Heckman, 369 S.W.3d at 155 (explaining that “[i]f, for example, a
plaintiff suing in a Texas court requests injunctive relief as well as damages, but the
injunction could not possibly remedy his situation, then he lacks standing to bring
that claim”). A plaintiff’s failure to show redressability requires dismissal for lack of
subject-matter jurisdiction. See, e.g., Kelly v. Harris, 331 F.3d 817, 820–21 (11th Cir.
2003); Brown, 53 S.W.3d at 306; Good Shepherd, 306 S.W.3d at 837, 838.
    B. The District failed to establish redressability with respect to either its putative

procedural claim or substantive claim. And because “[a] declaratory judgment is ap-
propriate only if a justiciable controversy exists as to the rights and status of the par-
ties and the controversy will be resolved by the declaration sought,” Bonham State

Bank, 907 S.W.2d at 467; Hardee, 2008 WL 2116251, at *1, that observation forms a
basis for dismissal of the District’s suit in full.
    1. To the extent the live petition articulates it, the District’s procedural claim is

that it was injured by Post Oak’s failure, in alleged violation of the second sentence
of District Rule 8.1, to give the District notice of its application with the Commission
for a landfill permit. CR.1200. In connection with that putative claim, the District
alleged that it learned from third parties of Post Oak’s December 2011 application
for a land-use compatibility determination in February 2012. CR.1197, 1198. The
District further alleged that, the following month, it sent the Commission comments
                                             32
on that application and a report from its geologic consultant. CR.1198–99. Similarly,
although the District alleged that “at no time did Post Oak provide notice to the

District of its application for a landfill permit, in accordance with District Rule 8.1,”
the District admits that it timely submitted its comments at a public meeting on that
application. CR.1200.
    After laying out these facts, the District’s live petition requested a declaration
“that disposal of solid waste at the site proposed by Post Oak violates the District’s
Rule 8.1.” CR.1200–01. Its prayer for relief sought, in full, rendition of judgment:
          1. declaring that operation of a landfill at the location proposed
          by Defendant Post Oak Clean Green, Inc. on the outcrop of the
          Upper Wilcox Aquifer violates District Rule 8.1; and
          2. awarding the District its costs and attorneys’ fees, expert wit-
          ness fees and postjudgment interest on those fees.
          3. granting the District such other relief, including supplemental
          and injunctive relief, to which it may show itself entitled.
CR.1202–03.
    For at least two reasons, that requested relief would not redress any injury flow-
ing from Post Oak’s alleged failure to provide formal notice. First, it is undisputed
that the District received actual notice of Post Oak’s applications in time for it to
prepare and submit comments to the Commission, so a judicial decree regarding the
provision of notice would give the District no relief beyond what it has already ob-

tained outside of court. Second, unlike the original petition, the District’s live peti-
tion requested no relief that could arguably redress the alleged notice failure; the re-
quested declaration spoke in terms of the substantive claim alone. CR.1202–03; cf.
CR.13 (original petition requesting both a declaration that Post Oak violated Rule
                                           33
8.1’s notice requirement and an award of penalties for that alleged violation); see Kin-
ney v. Palmer, No. 04-07-00091-CV, 2008 WL 2515696, at *2 (Tex. App.—San An-

tonio June 25, 2008, no pet.) (mem. op.) (explaining that an amended petition “com-
pletely replaces and supersedes the previous pleading”).
    In light of this difference between the original and amended petitions, the Court
could correctly determine that the District dropped its procedural claim entirely. But
even assuming the live petition contains a sufficient vestige of that claim to keep it in
the case, the District failed to establish redressability with respect to it, requiring its
dismissal.
    2. As already noted, the District’s substantive claim is based on the injury that
would allegedly occur if Post Oak were permitted to construct and operate the pro-

posed landfill. CR.1193, 1195, 1201. On the merits of that claim, Post Oak asserts that
the proposed landfill would not, in fact, violate the third sentence of Rule 8.1. See
CR.1017. But in this declaratory-judgment suit, the courts should not reach the mer-

its because the District’s substantive claim, like its putative procedural claim, should
be dismissed for lack of redressability if the Court concludes that it is ripe and not
redundant.

    Even assuming the District is correct that the third sentence of Rule 8.1 would
apply to Post Oak’s proposed landfill, it could not, as a matter of law, actually pre-
vent Post Oak from constructing and operating the landfill if it obtains the requisite
permits, including the permit it has requested from the Commission. As explained
above, the Commission has broad authority over water quality in general and in the
context of solid-waste management in particular. See supra pp. 3–7. Moreover, the
                                            34
Commission’s authority is superior to that of governmental entities such as the Dis-
trict, which function under Commission supervision and whose powers focus on the

spacing of, and production from, water wells. See supra pp. 8–12; see also Pruett v.
Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008) (noting that “[a]n
agency may adopt only such rules as are authorized by and consistent with its statu-
tory authority”); Grand Lodge of the Order of the Sons of Hermann in Tex. v. Curry,
108 S.W.2d 574, 576 (Tex. Civ. App.—San Antonio 1937, writ ref’d) (confirming
that “a water improvement district is a creature of statute and only has such juris-
diction as is expressly given it by statute, or is implied as a necessary incident to the
jurisdiction so expressly given”).
    Especially as Texas water resources grow more scare and disputes about access

to groundwater increase, water conservation districts’ powers are important. But
they neither overlap with nor diminish the Commission’s authority to grant permits
for landfills. A declaration that any Commission permit that might issue for Post

Oak’s proposed landfill would authorize activity that Rule 8.1 prohibits could pro-
vide redress on the District’s substantive claim only if the Court concluded that a
District rule could trump a Commission permit. But the relevant statutes compel the

opposite conclusion.
    For that reason, the District’s reliance below on section 361.039 of the Solid
Waste Disposal Act, which provides that the Act “does not diminish or limit the
authority of the commission, the Department of State Health Services, or a local
government in performing the powers, functions, and duties vested in those gov-
ernmental entities by other law,” was misplaced. See CR.1159. As an initial matter,
                                           35
the District does not fall within the Act’s definition of a “[l]ocal government.” See
Tex. Health & Safety Code §§ 361.003(17), 361.165(a); Act of May 29, 1997, 75th

Leg., R.S., ch. 1066, §§ 3, 5, 1997 Tex. Gen. Laws 4059, 4059. But more importantly,
no law vests the District with any “powers, functions, [or] duties” that could inter-
fere with the Commission’s forthcoming decision about whether to grant Post Oak
a landfill permit.
    The District is, of course, free to tell the Commission why it believes a permit
should not issue. It has already done so through its comments, and it may reiterate
its concerns at the contested-case hearing, which is currently set to begin early next
year. That input may influence the Commission’s ultimate permitting decision. But
under Texas law, the District’s power is generally inferior to that of the Commission,

and the District has no authority with respect to waste management at all. Accord-
ingly, a judicial decision that the third sentence of Rule 8.1 applies to Post Oak’s
proposed landfill could not prevent the Commission from issuing a permit that al-

lows the project to go forward, and that observation requires dismissal of the Dis-
trict’s substantive claim for lack of redressability.

III. The District’s Substantive Claim Is Barred Under The Doctrine Of
     Exclusive (Or, Alternatively, Primary) Jurisdiction.
    A. 1. An agency has exclusive jurisdiction when the Legislature gives it sole au-
thority to make the initial determination in a dispute. Subaru, 84 S.W.3d at 221; Cash
Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000). Exclusive jurisdiction may

be established through: (1) an “express legislative indication,” Thomas v. Long, 207



                                           36
S.W.3d 334, 340 (Tex. 2006); (2) a statute authorizing a governmental entity to ad-
minister rights unknown at common law, id. at 341–42; or (3) the creation of a “per-

vasive regulatory scheme” reflecting legislative intent that an agency have the sole
power to make an initial determination or that the regulatory process is the exclusive
means of remedying the problem to which the regulation is addressed. In re Entergy
Corp., 142 S.W.3d 316, 322 (Tex. 2004); Subaru, 84 S.W.3d at 221; Apollo Enters.,
Inc. v. ScripNet, Inc., 301 S.W.3d 848, 859 (Tex. App.—Austin 2009, no pet.).
    Pervasive regulatory schemes provide detailed legislative instructions for how
agencies should resolve disputes or make initial determinations in specialized areas
of the law. They exist in a variety of contexts. See, e.g., Entergy, 142 S.W.3d at 322–
23 (discussing the Public Utility Regulatory Act, which “establish[es] a comprehen-

sive and adequate regulatory system for electric utilities to assure rates, operations,
and services that are just and reasonable,” Tex. Util. Code § 31.001(a)); In re Craw-
ford & Co., 458 S.W.3d 920, 923–24 (Tex. 2015) (discussing the Workers’ Compen-

sation Act, which “designates the Department of Insurance as the administrative
agency responsible ‘[for overseeing] the workers’ compensation system of this state’
and establishes the Division of Workers’ Compensation within the Department to

‘administer and operate’ that system” (quoting Tex. Labor Code § 402.001)); Janek
v. Gonzalez, No. 03-11-00113-CV, 2013 WL 1748795, at *1, *5–6 (Tex. App.—Austin
Apr. 17, 2013, no pet.) (mem. op.) (discussing the Supplemental Nutrition Assis-
tance Program, under which the Texas Health and Human Services Commission
oversees the distribution of food stamps, see, e.g., Tex. Hum. Res. Code §§ 33.0006,
33.002).
                                          37
    Assessment of whether a claim falls within or outside of an agency’s exclusive
jurisdiction “does not depend on the label of the cause of action asserted” by a party

seeking to establish subject-matter jurisdiction. Crawford, 458 S.W.3d at 926. Rather,
“courts must look at the substance of the claim.” Id. “A party cannot circumvent an
agency’s exclusive jurisdiction by filing a declaratory-judgment action if the subject
matter of the action is one ‘over which the Legislature intended the [administrative
agency] to exercise exclusive jurisdiction.’” Blue Cross Blue Shield of Tex. v. Duenez,
201 S.W.3d 674, 676 (Tex. 2006) (quoting Thomas, 207 S.W.3d at 342).
    In applying these principles, the Texas Supreme Court makes a “close inspec-
tion” of declaratory-judgment claims and focuses on the “real point of contention,”
rather than how the plaintiff has “attempt[ed] to cast” its claims. In re Sw. Bell Tel.

Co., L.P., 235 S.W.3d 619, 625, 626 (Tex. 2007). The Court looks to whether a claim
broadly “arise[s] out of” conduct within the scope of an agency’s exclusive jurisdic-
tion. Crawford, 458 S.W.3d at 928; see id. at 927–28 (holding that the plaintiffs’

claims regarding the investigation, handling, and settling of claims for workers’ com-
pensation benefits fell within an agency’s exclusive jurisdiction over such disputes);
cf. BSR Water Co., 190 S.W.3d at 756 (holding that while the Texas Water Code

made the Commission responsible for granting certificates of convenience and ne-
cessity, it did not give the Commission exclusive jurisdiction to resolve breach-of-
contract disputes).
    When a party files a claim within an agency’s exclusive jurisdiction, it must gen-
erally await the administrative proceedings’ completion, exhaust its administrative
remedies, and seek judicial review in the manner designated by statute. Cash Am., 35
                                          38
S.W.3d at 15. Until then, “the trial court lacks subject matter jurisdiction and must
dismiss the claim[].” Subaru, 84 S.W.3d at 221.

    2. The doctrine of primary jurisdiction applies “when a court and an agency have
concurrent original jurisdiction over a dispute.” Cash Am., 35 S.W.3d at 18. It “op-
erates to allocate power between courts and agencies when both have authority to
make initial determinations.” Subaru, 84 S.W.3d at 221.
    Primary jurisdiction respects the special competence of administrative agencies,
which are typically best positioned to fulfill essential legislative objectives and main-
tain decisional uniformity in areas that involve technical and intricate questions of
fact and thus require specialized knowledge and experience. Cash Am., 35 S.W.3d at
18. A trial court “should allow an administrative agency to initially decide an issue

when: (1) an agency is typically staffed with experts trained in handling the complex
problems in the agency’s purview; and (2) great benefit is derived from an agency’s
uniformly interpreting its laws, rules, and regulations, whereas courts and juries may

reach different results under similar fact situations.” Subaru, 84 S.W.3d at 221; see
In re Sw. Bell Tel. Co., L.P., 226 S.W.3d 400, 403–04 (Tex. 2007) (finding each of
these requirements satisfied because the Public Utility Commission “is staffed with

experts who routinely consider the validity and enforceability of [telephone] inter-
connection agreements” and application of the primary-jurisdiction doctrine would
avoid “[c]onflicting jury verdicts and rulings by different courts” in similar situa-
tions).




                                           39
    B. 1. In addressing the question of exclusive jurisdiction here, the Court should
ask: (a) whether the relevant statutory provisions give the Commission exclusive ju-

risdiction to determine whether proposed Type I landfill projects may go forward
and, if so; (b) whether the substance of the District’s declaratory-judgment claim
(regardless of how the District has characterized it) falls within the Commission’s
exclusive jurisdiction. See Crawford, 458 S.W.3d at 926–28. As explained below, the
answer to each question is “yes.”
    a. The Commission has exclusive jurisdiction over state permitting of Type I
municipal solid waste landfills. As the Third Court of Appeals has observed, “[t]he
granting or denying of an application under the [Solid Waste Disposal] Act is an ex-
ecutive function committed exclusively to the Commission.” Smith v. Houston

Chem. Servs., Inc., 872 S.W.2d 252, 258 (Tex. App.—Austin 1994, pet. withdrawn);
see also Juliff Gardens, L.L.C. v. TCEQ, 131 S.W.3d 271, 278–79 & n.4 (Tex. App.—
Austin 2004, no pet.) (noting that the Solid Waste Disposal Act “empower[s] the

Commission with the [landfill-]permitting function” and rejecting the Commis-
sion’s exclusive-jurisdiction argument only because the plaintiff’s “request for de-
claratory relief concerns only the constitutionality of [a provision of the Act] and does

not ask the district court to make any determination regarding the proper character-
ization of [a topographical feature of a proposed landfill site],” see id. at 275 n.3);
McDaniel v. Tex. Natural Res. Conserv’n Comm’n, 982 S.W.2d 650, 653 (Tex. App.—
Austin 1998, pet. denied) (noting that the Solid Waste Disposal Act gives the Com-




                                           40
mission “general authority over municipal solid waste, allowing the agency to con-
trol and manage all aspects of municipal solid waste by all practical means as long as

such methods are consistent with its powers and duties under the Act”).
    Moreover, the Legislature authorized the Commission to grant or deny the spe-
cific type of permit Post Oak has requested, creating a pervasive regulatory scheme
governing the minutiae of the permitting process and mandating numerous ground-
water safeguards. See supra pp. 3–6 (citing the statutory provisions that charge the
Commission with controlling all aspects of municipal solid waste management and
describe the breadth of the Commission’s authority in this area); see also id. at 6–7
(citing the large body of Commission rules that govern applications for municipal
solid waste landfill permits and reflect the Commission’s careful attention to ground-

water issues); Tex. Water Code §§ 26.0136, 26.023 (granting the Commission “sole
and exclusive authority to set water quality standards for all water in the state” and
making it “the agency with primary responsibility for implementation of water qual-

ity management functions”). In short, the regulatory scheme at issue here is no less
“pervasive” than the others that Texas courts have recognized.
    b. Once again, although the District’s substantive claim depends on Rule 8.1 in

seeking to prevent construction and operation of Post Oak’s proposed landfill, it is
expressly tied to the Commission’s authority to issue a permit. CR.1193 (live petition
complaining of “[Post Oak’s] pursuit of a landfill permit [from the Commission],
proposing construction and operation of a landfill in Guadalupe County in violation
of the District’s Rule 8.1”); see 1.RR.5 (statement of the District’s trial counsel that
“were it to be permitted” by the Commission, Post Oak’s proposed landfill would
                                          41
violate Rule 8.1). Because obtaining a permit from the Commission is a necessary
(albeit not sufficient, see CR.109–11) condition for construction and operation of Post

Oak’s proposed landfill, and because the Commission may decline to issue a permit
after considering public comments and submissions by the District and other inter-
ested parties at the upcoming contested case hearing, the Commission is fully em-
powered to give the District the substantive relief it seeks through this lawsuit. That
observation deprives the trial court of subject-matter jurisdiction over this matter
within the Commission’s exclusive jurisdiction. See Sw. Bell Tel., 235 S.W.3d at 625–
26.
      2. If the Commission does not have exclusive jurisdiction over the substance of
the District’s claim, it has primary jurisdiction. Recognizing the icy reception that

most landfill proposals receive from local authorities, the Legislature gave the Com-
mission statewide authority to determine which proposals should be permitted after
hearing the views of interested persons. See, e.g., Tex. Health & Safety Code

§§ 361.0641, 361.067, 361.083(a). Especially when coupled with the Commission’s
rules establishing the detailed requirements for a permit application, that legislative
framework necessitates careful and comprehensive analysis by an agency responsible

for making determinations in the interest of the State as a whole.
      The analysis is highly technical. At almost every turn, it calls upon the special-
ized knowledge of Commission experts. See, e.g., 30 Tex. Admin. Code § 330.63(a)
(ensuring the Commission’s ability to review a design engineer’s site development
plan, which must include “a detailed design with supporting calculations and data


                                           42
for the development and operation of a solid waste site,” id. § 330.3(140)). Moreo-
ver, resolution of permitting issues by the Commission, rather than local courts, en-

sures statewide decisional uniformity in an area that would otherwise be susceptible
to local bias. For each of these reasons, the District’s substantive claim, if it does not
fall within the Commission’s exclusive jurisdiction, fits comfortably within the doc-
trine of primary jurisdiction.
    C. Neither the trial court’s reasoning nor the District’s assertions alter the anal-
ysis. In response to the Commission’s arguments regarding exclusive or primary ju-
risdiction, the District asserted below that “[t]here is no statute giving [the Commis-
sion] the exclusive authority (or any authority) to determine the applicability of the
District’s rules. Nor does [the Commission] have any expertise that is greater than

this Court’s in determining the applicability of the District’s rule.” CR.1158. But as
already explained, the District could obtain a declaration in this suit regarding the
applicability of Rule 8.1 only through an impermissible advisory opinion. The only

way that would not be true is if the relevant statutes gave the District power to over-
ride a Commission permit. Because they do not, the District’s present suit could be
nothing other than an effort to block the Commission’s issuance of Post Oak’s re-

quested permit. That effort falls squarely within the Commission’s regulatory pur-
view and will require technical expertise.
    In an effort to show that the Commission’s authority is less pervasive than
claimed, the District cited section 361.154 of the Solid Waste Disposal Act, which
allows counties to issue licenses for solid waste facilities, and section 361.161 of the
Act, which states that a Commission permit is not required when a county permit
                                           43
has already issued. CR.1159. But the District failed to note that the Legislature ex-
pressly empowered the Commission to preclude a county’s exercise of this author-

ity. See Tex. Health & Safety Code §§ 361.154(a) (beginning with “[e]xcept as pro-
vided by Section[] 361.151 . . .”), 361.151(c) (providing that “[t]he commission, by
specific action or directive, may supersede any authority granted to or exercised by
a county under this chapter”); see also id. § 361.154(b) (reflecting that county rules
regarding solid-waste management must be both “(1) compatible with and not less
stringent than those of the commission; and (2) approved by the commission”).
    To the extent the District attempted to question the Commission’s exclusive or
primary jurisdiction over the permitting of hazardous waste management facilities,
see CR.1159–60, that effort could likewise not help it here. Post Oak is seeking a per-

mit for a municipal solid waste landfill, not a hazardous waste management facility.
CR.77, 1193; see 30 Tex. Admin. Code § 330.61(b)(1) (providing that “[m]unicipal
solid waste facilities may not receive regulated hazardous waste”); supra p. 14 (ex-

plaining why a Type I municipal solid waste landfill permit could allow a landfill to
accept certain special waste); cf. Tex. Health & Safety Code § 361.095 (governing
permit applications for hazardous, rather than municipal, waste management facili-

ties).
    And to the extent the trial court construed the Solid Waste Disposal Act’s pro-
visions regarding hazardous waste management facilities, unlike those regarding
solid waste generally, as providing a clear indication of legislative intent to exclude
local interference with respect to hazardous waste management, its reasoning de-
pends on the premise that the Legislature authorized the District to have a say in
                                          44
issues regarding solid waste management. CR.1186–88. But once again, that premise
finds no support in the statutes.

    Finally, that Post Oak is required to seek additional permits, see CR.1162, does
not diminish the Commission’s role in ensuring that the statewide standards for is-
suance of a Type I municipal solid waste landfill permit have been satisfied. If those
requirements are not satisfied, the project may not go forward no matter what other
permits Post Oak might obtain.
                                     P RAYER
    The Court should reverse the trial court’s order denying the Commission’s plea
to the jurisdiction and render judgment dismissing the District’s suit for lack of sub-
ject-matter jurisdiction.
                                               Respectfully submitted.

 KEN PAXTON                                    SCOTT A. KELLER
 Attorney General of Texas                     Solicitor General

 CHARLES E. ROY                                     /s/ Bill Davis
 First Assistant Attorney General              BILL DAVIS
                                               Assistant Solicitor General
 O FFICE OF THE A TTORNEY G ENERAL             State Bar No. 24028280
 P.O. Box 12548 (MC 059)                       Bill.Davis@texasattorneygeneral.gov
 Austin, Texas 78711-2548
 Tel.: (512) 936-1896                          NANCY ELIZABETH OLINGER
 Fax: (512) 370-9191                           CYNTHIA WOELK
                                               Assistant Attorneys General




                                          45
                      C ERTIFICATE          OF   S ERVICE
   On September 17, 2015, this brief was served via CaseFileXpress on lead counsel
for the District (Marisa Perales / FREDERICK, PERALES, ALLMON & ROCKWELL, P.C.
/ 707 Rio Grande, Suite 200 / Austin, Texas 78701 / marisa@LF-Lawfirm.com) and
Post Oak (Christopher Dodson / BRACEWELL & GIULIANI / 711 Louisiana St., Suite
2300 / Houston, Texas 77002 / chris.dodson@bgllp.com).
                                               /s/ Bill Davis
                                            BILL DAVIS

                  C ERTIFICATE        OF     C OMPLIANCE
   Microsoft Word reports that this brief contains 12,049 countable words.
                                               /s/ Bill Davis
                                            BILL DAVIS




                                       46
Appendix
                                                                              DE      CROW
                             CAUSE NO. 14-0863-CV                    ~   Dist. Court. Guadalupe Co. Tll


GUADALUPE COUNTY                            § IN THE DISTRICT COURT
GROUNDWATERCONSERVATION                     §
DISTRICT,                                   §
          Plaintiff,                        §
v.                                          § GUADALUPE COUNTY, TEXAS
                                            §
POST OAK CLEAN GREEN, INC.,                 §
        Defendant.                          § 25TH JUDICIAL DISTRICT

                                      ORDER

      Before the Court is the Texas Commission on Environmental Quality's (TCEQ)

Plea to the Jurisdiction. Having considered the Plea to the Jurisdiction, the responses

thereto, and the other relevant papers on file with the Court, it is hereby ORDERED

that TCEQ's Plea to the Jurisdiction is:

_ _ Granted:        All Plaintiffs claims are dismissed for lack of jurisdiction.



___)(_ Denied:




                                        THE HONORABLE W.C. KIRKENDALL
                                        JUDGE PRESIDING




                                      Page 1218
