                                                                                ACCEPTED
                                                                             04-15-00433-cv
                                                                FOURTH COURT OF APPEALS
                                                                     SAN ANTONIO, TEXAS
                                                                       11/4/2015 1:21:15 PM
                                                                             KEITH HOTTLE
                                                                                     CLERK

                      NO. 04-15-00433-CV

                                                       FILED IN
                 IN THE COURT OF APPEALS    4th COURT OF APPEALS
                                             SAN ANTONIO, TEXAS
            FOR THE FOURTH DISTRICT OF TEXAS
                                            11/4/2015 1:21:15 PM
                    SAN ANTONIO, TEXAS        KEITH E. HOTTLE
                                                        Clerk

   TEXAS COMMISSION ON ENVIRONMENTAL QUALITY and
            POST OAK CLEAN GREEN, INC.,

                                      Appellants,

                             v.
            GUADALUPE COUNTY GROUNDWATER
                CONSERVATION DISTRICT,

                                      Appellee.


               BRIEF OF AMICI CURIAE
        WASTE MANAGEMENT OF TEXAS, INC. AND
           TEXAS ASSOCIATION OF BUSINESS



Bryan J. Moore                    Amanda M. Martin
State Bar No. 24044842            State Bar No. 24074744
bmoore@bdlaw.com                  amartin@txbiz.org
BEVERIDGE & DIAMOND, P.C.         TEXAS ASS’N OF BUSINESS
98 San Jacinto, Suite 1420        1209 Nueces Street
Austin, Texas 78701               Austin, Texas 78701
Telephone: 512.891.8000           Telephone: 512.637.7708
Facsimile: 512.391.8099           Facsimile: 512.477.0836
COUNSEL FOR                       COUNSEL FOR
WASTE MANAGEMENT                  TEXAS ASSOCIATION
OF TEXAS, INC.                    OF BUSINESS
                  IDENTITY OF PARTIES AND COUNSEL
      Amici curiae adopt Appellants’ lists of parties and counsel and

supplement those lists as follows:

Amici Curiae

      Waste Management of Texas, Inc. (“Waste Management”)
      Texas Association of Business (“TAB”)

Counsel for Waste Management

      Bryan J. Moore
      State Bar No. 24044842
      bmoore@bdlaw.com
      BEVERIDGE & DIAMOND, P.C.
      98 San Jacinto, Suite 1420
      Austin, Texas 78701
      Telephone: 512.891.8000
      Facsimile: 512.391.8099

Counsel for TAB

      Amanda M. Martin
      State Bar No. 24074744
      amartin@txbiz.org
      TEXAS ASS’N OF BUSINESS
      1209 Nueces Street
      Austin, Texas 78701
      Telephone: 512.637.7708
      Facsimile: 512.477.0836




                                     i
                           RULE 11(c) STATEMENT

      In accordance with Tex. R. App. P. 11(c), amici curiae disclose that Waste

Management is the source of any fee paid or to be paid for preparing this brief, and

that such fee, if paid, will be paid to counsel for Waste Management.




                                         ii
                                         TABLE OF CONTENTS

                                                                                                                 PAGE

IDENTITY OF PARTIES AND COUNSEL .............................................................i
RULE 11(c) STATEMENT ...................................................................................... ii
STATEMENT OF THE CASE .................................................................................. 5
STATEMENT REGARDING ORAL ARGUMENT ............................................... 5
ISSUES PRESENTED............................................................................................... 5
STATEMENT OF FACTS ........................................................................................ 5
         I.         Waste Management’s Interest In This Case .......................................... 5
   II. TAB’s Interest In This Case .................................................................. 8
SUMMARY OF THE ARGUMENT ...................................................................... 10
ARGUMENT ........................................................................................................... 11
         I.         The District Has No Authority To Supersede The Commission’s
                    Exclusive Jurisdiction Over The Permitting, Siting, Construction, and
                    Operation Of MSW Facilities ............................................................. 11
               A.        The District’s Lack Of Authority Is Evident From The Regulatory
                         Framework For MSW Landfill Permitting ................................... 11
               B.        The District Cannot Meet The Criteria That The Legislature Has
                         Established For Special Districts To Have A Role In Solid Waste
                         Management .................................................................................. 15
               C.        The District Cannot Reasonably Claim The Authority To Control
                         Land Use And Development That The Legislature Has
                         Historically Denied To Counties .................................................. 16
               D.      The District Cannot Dictate The Outcome Of The Permitting
                       Process, But It Is Free To Participate In That Process ................. 19
         II.        The District’s Claim Is Not Ripe......................................................... 21
PRAYER .................................................................................................................. 22




                                                            iii
                                  TABLE OF AUTHORITIES
                                                                                                   PAGE

30 TEX. ADMIN. CODE § 330.23 .................................................................. 12, 13, 14

30 TEX. ADMIN. CODE § 330.23(d) ..........................................................................15

30 TEX. ADMIN. CODE § 330.71(b). ...........................................................................6

30 TEX. ADMIN. CODE §§ 55.152-.156. ............................................................ 19, 20

TEX. HEALTH & SAFETY CODE § 361.011(a)............................................................12

TEX. HEALTH & SAFETY CODE § 361.067 ................................................................13

TEX. HEALTH & SAFETY CODE § 361.165. ........................................................ 15, 16

TEX. HEALTH & SAFETY CODE § 363.112(a)............................................................16

TEX. WATER CODE § 26.127(a). ..............................................................................12




                                                     iv
                         STATEMENT OF THE CASE
      Amici curiae adopt Appellants’ statements of the case.

              STATEMENT REGARDING ORAL ARGUMENT
      Amici curiae support Appellants’ requests for oral argument, but, per

Tex. R. App. P. 39.5, do not seek to share time with Appellants at oral

argument or to otherwise orally argue the case to the Court.

                             ISSUES PRESENTED
      Amici curiae adopt Appellants’ statements of the issues presented, but

argue herein only a subset of those issues, as set forth below.

                           STATEMENT OF FACTS
      Amici curiae adopt Appellants’ statements of facts and supplement them

as follows.

I.    Waste Management’s Interest In This Case

      Amicus curiae Waste Management and its affiliates and subsidiaries own

and/or operate over 23 commercial solid waste facilities in Texas, including 14

active municipal solid waste (“MSW”) landfill facilities. These facilities serve

the waste disposal needs of residents, businesses, and municipalities throughout

Texas.    Each of these facilities is permitted to operate by the Texas

Commission on Environmental Quality (“TCEQ” or the “Commission”). The

permitting and construction of landfill facilities require significant capital


                                        5
expenditures and investments, particularly in the early stages of the project.

Because of this, and to ensure a long-term, stable supply of waste disposal

capacity in the State, MSW landfill permits are normally issued by TCEQ for

the life of the site. See 30 Tex. Admin. Code § 330.71(b).

      Waste Management has an interest in ensuring that if an application for a

MSW permit satisfies all applicable statutory and regulatory requirements, then

the application will be granted and the permit will be issued by the Commission

authorizing the construction and operation of the proposed MSW facility, and

that the TCEQ-issued permit will remain valid and effective (unless amended,

suspended, or revoked by the Commission in accordance with the applicable

legal requirements). These have been the fundamental tenets of the MSW

regulatory program in Texas since its inception.          Waste Management has

invested significantly in MSW projects and facilities throughout the State, and

has entered into long-term contracts for waste disposal, with the understanding

that this core regulatory structure could not be undone by a groundwater

conservation district or other special district at the stroke of a pen.

      This case implicates the exclusive jurisdiction of the Commission in the

area of MSW permitting, and whether the Commission’s permitting process, or

a MSW permit issued by TCEQ, may be vetoed by a groundwater conservation

district or other special district. These issues are of great importance to Waste


                                          6
Management and its customers. Any outcome of this case that may allow

opponents of MSW projects to circumvent TCEQ’s public participation

process, or that may jeopardize the primacy of a TCEQ-issued MSW permit, or

otherwise jeopardize Waste Management’s ability to site, construct, operate,

and expand a MSW facility per the terms of a permit issued by TCEQ, could, in

turn, put in jeopardy the viability of Waste Management’s core business and its

ability to provide reliable, long-term waste disposal services to meet its

customers’ needs.

      The viability of Waste Management’s business depends upon uniform,

statewide standards for the permitting, siting, construction, and operation of

MSW facilities. Absent such uniformity, there is regulatory uncertainty, and

such uncertainty hinders the significant capital expenditures and investments

necessary to develop and maintain the MSW disposal capacity sufficient to

meet the needs of Waste Management’s customers and the State’s rapidly

growing population.      A multi-decade MSW facility project becomes

substantially more risky, and proportionately less viable, if years of work and

investment could be nullified by a groundwater conservation district or other

special district or entity with no authority over solid waste management.

Allowing such entities to block TCEQ permits for MSW facilities, or to limit or

prohibit the siting of TCEQ-permitted MSW facilities, could potentially lead to


                                       7
a regulatory free-for-all, with local interests and bias dictating which MSW

facilities may be permitted, where such facilities may be located, and which

existing, permitted MSW facilities must close. Such a regulatory environment

would undoubtedly result in local, regional, and statewide reductions in MSW

disposal capacity, both existing and projected.

II.   TAB’s Interest In This Case

      TAB is Texas’ leading employer organization. Representing companies

from the largest multi-national corporations to small businesses in nearly every

community in Texas, TAB works to improve the State’s business climate and to

help make the Texas economy the strongest in the world. For more than 90 years,

TAB has been on the front lines of the legislative, regulatory, and judicial

battlefields, fighting for issues that impact business to ensure that employers’

opinions are being heard. In addition, TAB is the state chamber of commerce

representing over 200 local chambers and the many thousands of Texas businesses

that support those local business organizations.

      TAB’s membership includes national, regional, and local waste management

companies that own and/or operate MSW facilities in Texas, as well as countless

other businesses that rely upon a stable, long-term supply of waste disposal

capacity throughout the State and a state environmental permitting process that is

not subordinate to vague regulations that can be wielded arbitrarily by special


                                          8
districts. Indeed, almost every TAB member business holds an environmental

permit from the State, or utilizes, either directly or indirectly, one or more of the

State’s MSW facilities. Accordingly, TAB’s broad interest in a consistent and

predictable regulatory environment and narrow interest in the particular legal

issues presented in this case are aligned with that of Waste Management, as

discussed above.

         Allowing groundwater conservation districts or other special districts, or any

other governmental entities without specific authority over solid waste

management, to usurp the statewide role of the Commission and dictate where

MSW facilities may be located on a local or regional level would place TAB’s

member companies at a competitive disadvantage within and outside of the

State.

         Since businesses pay well over half of the tax burden in Texas, TAB’s

members also have a direct interest in local and state agencies operating as

efficiently as possible. Allowing local interests to usurp the established roles of

state agencies that have been granted authority over solid waste management will

result in confusion and conflict between jurisdictions. These entities must recover

these cost increases through taxes, further magnifying the impact on Texas

businesses and consumers. In fact, faced with the regulatory confusion that this




                                            9
case exemplifies, many businesses may elect not to locate in Texas at all, or may

elect not to invest in expansion of facilities that are located in the State.

                        SUMMARY OF THE ARGUMENT

      The Commission has exclusive jurisdiction over the permitting, siting,

construction, and operation of MSW facilities in Texas.               Additionally, the

Guadalupe County Groundwater Conservation District’s (the “District’s”) claim is

not ripe. The Court’s affirmation of either argument requires dismissal of the

District’s lawsuit.

      By writing a rule prohibiting waste disposal in certain areas, and seeking

to validate that rule through a declaratory judgment action in district court, the

District attempts to usurp the Commission’s jurisdiction over the permitting,

siting, construction, and operation of MSW facilities in Texas. By law, the

Commission’s jurisdiction over such matters is exclusive, and the District has no

authority to supersede it.

      The District has not yet been harmed, and may never be harmed. The

District will have recourse in the courts if it exhausts its administrative remedies

and if the Commission ultimately decides to issue Post Oak Clean Green, Inc.’s

(“Post Oak’s”) permit. Until such time, the District’s claim is not ripe.




                                           10
                                    ARGUMENT
I.    The District Has No Authority To Supersede The Commission’s
      Exclusive Jurisdiction Over The Permitting, Siting, Construction, and
      Operation Of MSW Facilities

       For the reasons set forth in Appellants’ briefs, the Commission has

exclusive jurisdiction over the permitting, siting, construction, and operation of

MSW facilities in Texas.        The District has no such jurisdiction and cannot

effectively veto a TCEQ-issued permit for the siting, construction, and operation

of a MSW facility.1

      A.     The District’s Lack Of Authority Is Evident From The
             Regulatory Framework For MSW Landfill Permitting

       While the Commission’s exclusive jurisdiction over matters relating to

MSW management is well documented in Appellants’ briefing on this issue, it is

also reflected in the permitting process for MSW landfills – a process that Waste

Management and TAB know well from experience. In addition to the general

public participation process for TCEQ permitting decisions, which allows those

potentially affected by a proposed permit to voice their concerns, some entities

have a defined role in the permitting of MSW landfills that is expressly recognized

by law. The District is not among those entities. And while some entities have a

legally-recognized role to play, no entity plays a greater role than the Commission,



1
      This argument is consistent with, and amicus curiae herein adopts, Appellant TCEQ’s
argument regarding redressability. See Br. of Appellant TCEQ at 31-36.

                                           11
which has the final say in the permitting, siting, construction, and operation of

MSW landfills in Texas.


        The Water Code directs all “state agencies engaged in water quality or

water pollution control activities” to “coordinate those activities with the

[C]ommission.” Tex. Water Code § 26.127(a). Additionally, under the Solid

Waste Disposal Act, the Commission must “coordinate municipal solid waste

activities.” Tex. Health & Safety Code § 361.011(a); see also id. § 361.017(a)

(requiring TCEQ to “coordinate industrial solid waste activities and hazardous

municipal waste activities”). While such coordination may occur at any time (and

at various and multiple times) throughout the multi-decade period spanning the

siting, construction, and operation of a MSW landfill, it is specifically provided

for in the MSW landfill permitting process, per TCEQ’s regulations.

       For instance, under 30 Tex. Admin. Code § 330.23, TCEQ is required to

“coordinate the review of all permit applications” for MSW landfills with certain

state and federal agencies.           Groundwater conservation districts, such as the

District, are not among the agencies that TCEQ must coordinate with regarding the

Commission’s review of an application for a MSW landfill permit.2 Furthermore,
2
        Additionally, permit applicants may also be required to document, in their application,
that they have coordinated with certain state and/or federal agencies, councils of government,
and/or local governments regarding the application or proposed landfill. See, e.g., id.
§ 330.61(i)(4)-(5), (m)(2), (n)(2), (o), (p). Here again, groundwater conservation districts are not
among the listed entities that must be consulted.

                                                12
the Commission is required only to “solicit recommendations” or “comments”

from each listed agency, or to otherwise “coordinate” with each agency, regarding

the limited portions of the MSW landfill permit application that concern matters

within the agency’s area-specific jurisdiction (e.g., coordinating with and soliciting

recommendations from the Texas Department of Transportation (“TxDOT”)

regarding the adequacy and design capacity of state-maintained roadways used to

access a MSW landfill). Id. § 330.23(a)-(c), (h).3

       While these listed agencies are entitled, by rule, to the requisite Commission

coordination, and to review and comment on all permit applications for MSW

landfills, that is the extent of their role in the permitting process – they have no

decision-making authority. They have no authority to decide whether a landfill

permit should be issued; where a landfill should or should not be sited; or how a

landfill should be constructed and operated.                 This holds true even if the

coordinating agency has concerns regarding the permit application that fall within

the agency’s jurisdiction or particular area of expertise (e.g., if the Texas Parks and

Wildlife Department (“TPWD”) has concerns regarding impacts to threatened or



3
       See also Tex. Health & Safety Code § 361.067 (providing that the Commission shall mail
a copy of an administratively complete permit application or a summary of its contents to certain
governmental entities (i.e., mayor, county judge, and local and county health authorities) and that
such entities “shall have a reasonable time . . . to present comments and recommendations on the
permit application before the [C]omission acts on the application”).

                                                13
endangered species).     The Commission is required to “consider information

provided by” the agency, but the Commission is under no obligation to defer to the

agency, and the agency has no authority to decide whether the application should

be granted. Id. § 330.23(h).

      An entity, such as the District, that the Commission is not even required to

consult in the MSW landfill permitting process cannot reasonably argue that it has

the authority to preclude or void a MSW landfill permit, or to decide where a

landfill can or cannot be sited, when the entities that the Commission is required to

consult in the permitting process have no such authority. Just as TxDOT and

TPWD – agencies with which the Commission is required to coordinate – have

particular expertise that may be relevant to the review of a MSW landfill

application, groundwater conservation districts may have particular expertise

regarding the groundwater aquifers within their jurisdiction, and that expertise may

be of use to the Commission in deciding whether a landfill application should be

granted. But groundwater conservation districts and other entities with whom the

Commission is not required to coordinate cannot reasonably claim any role in the

permitting process that is greater than (or even on par with) that of the listed

coordinating agencies. Given that the legally-recognized coordinating agencies,

such as TxDOT and TPWD, have no authority to preclude or override the issuance



                                         14
of a MSW landfill permit, or limit where a landfill may be sited, groundwater

conservation districts and other similarly situated entities clearly have no such

authority.

       B.     The District Cannot Meet The Criteria That The Legislature Has
              Established For Special Districts To Have A Role In Solid Waste
              Management

       The Legislature has authorized political subdivisions to regulate MSW

disposal only under express, limited circumstances that do not apply to the District.

Such limited authority is prescribed by § 361.165 of the Solid Waste Disposal Act.

Tex. Health & Safety Code § 361.165. That section allows a political subdivision

to assume the authority to serve “as the coordinator of all solid waste management

practices and activities for municipalities, counties, and other governmental entities

in its jurisdiction that have solid waste management regulatory powers or engage

in solid waste management practices or activities.” Id. § 361.165(d)(1). The

District has no ability to assume such authority, nor has it attempted to do so. A

political subdivision can avail itself of the authority provided by § 361.165 only if

it “(1) has jurisdiction in more than one county; and (2) has been granted the power

by the [L]egislature to regulate solid waste handling or disposal practices or

activities in its jurisdiction.” Id. § 361.165(a)(1)-(2).4 The District cannot satisfy

4
        See also 30 Tex. Admin. Code § 330.23(d) (noting that the Solid Waste Disposal Act
“applies to political subdivisions of the state to which the legislature has given waste handling
authority for two or more counties”).

                                               15
either of these two criteria. The District’s jurisdiction does not extend beyond

Guadalupe County, and the Legislature has not granted the District any power to

regulate solid waste handling or disposal.

       Moreover, even if the District – or any other groundwater conservation

district – could meet the § 361.165 criteria for political subdivisions, that section

allows qualifying political subdivisions to exercise only those solid waste

management powers that the Solid Waste Disposal Act grants to counties. See id.

§ 361.165(b).      And, in the exercise of those powers, the qualifying political

subdivision “is subject to the same duties, limitations, and restrictions applicable to

a county under” the Act. Id. § 361.165(c). Accordingly, the Commission “may

supersede any authority granted to or exercised” by a political subdivision under

§ 361.165. Id. § 361.151(c).5

       C.     The District Cannot Reasonably Claim The Authority To Control
              Land Use And Development That The Legislature Has
              Historically Denied To Counties

       Unable to avail itself of the limited, conditional authority provided by

§ 361.165 of the Solid Waste Disposal Act , the District attempts to circumvent the

law entirely and regulate the siting and operation of landfills in Guadalupe County

5
        Additionally, if the qualifying political subdivision sought to exercise a county’s
authority to prohibit the disposal of MSW in certain areas, then the political subdivision would
need to “specifically designate” the areas within its jurisdiction where the disposal of MSW will
not be prohibited. Tex. Health & Safety Code § 363.112(a); see also Br. of Appellant Post Oak
at 22-24.

                                               16
under the District’s general mandate to protect groundwater within its geographic

boundaries. If such general, limited authority sufficed to allow the District to

assert jurisdiction over MSW landfills (it does not), then the District ostensibly

could use that same authority to control various other land uses under the banner of

groundwater protection. Indeed, the District’s rule prohibiting the application of

waste within certain areas of Guadalupe County is a targeted land use control. The

Texas Legislature has a long history of considering, and failing to pass, bills to

grant counties broad authority to control land use. Given that, as compared to

counties, groundwater conservation districts are a more limited form of local

government, it is reasonable to conclude that the Legislature never intended to

implicitly confer upon groundwater conservation districts the broad land use

control authority that it has historically declined to confer upon counties after

much debate and consideration.

      For instance, House Bill 3447 in the 80th legislative session would have

authorized certain counties located in a “priority groundwater management area” to

regulate land development in the unincorporated area of the county by various

means. Tex. H.B. 3447, 80th Leg., R.S. (2007). The bill failed to pass. Much

broader authority to “protect the public health, safety, or welfare” would have been

conferred upon counties by bills under consideration in multiple legislative



                                        17
sessions. Tex. H.B. 588, 76th Leg., R.S. (1999); Tex. H.B. 3781, 76th Leg., R.S.

(1999); Tex. H.B. 2617, 77th Leg., R.S. (2001); Tex. H.B. 140, 78th Leg., R.S.

(2003); Tex. H.B. 3735, 81st Leg., R.S. (2009). But those bills, too, failed to pass.

The legislative history is replete with other failed efforts to empower counties to

regulate land use, development, and zoning. 6 The District’s attempt to assume

such regulatory authority, without specific statutory authorization, is entirely at

odds with this legislative history. The District cannot reasonably claim such broad

authority under its general mandate when the Legislature has time and again

considered and rejected specific legislation that would expressly confer such

authority upon counties.

       Furthermore, when the Legislature has authorized counties to regulate land

use, development, or zoning, it has restricted that authority to prescribed, limited

circumstances.7 In the context of this case, the most relevant example of such

limited county authority is Tex. Health & Safety Code § 364.012, which authorizes

counties to prohibit solid waste disposal if it “is a threat to the public health, safety,

6
        See, e.g., Tex. H.B. 153, 84th Leg., R.S. (2015) (relating to the adoption of noise
regulations by certain counties); Tex. H.B. 924, 84th Leg., R.S. (2015) (relating to the authority
of a county to adopt a fire code); Tex. H.B. 662, 82nd Leg., R.S. (2011) (relating to authorizing
certain counties to adopt buffer zone regulations and comprehensive land development plans);
Tex. H.B. 3492, 82nd Leg., R.S. (2011) (relating to authorizing counties to adopt buffer zone
regulations); Tex. H.B. 2167, 81st Leg., R.S. (2009) (relating to granting Hill Country counties
authority to regulate certain land use); Tex. H.B. 757, 79th Leg., R.S. (2005) (relating to the
authority of a county to enact certain land development regulations).
7
       See, e.g., Tex. Local Gov’t Code, Tit. 7, Subtit. B (county regulatory authority).

                                               18
and welfare,” but only if the county specifically designates areas in the county

where “solid waste disposal is not prohibited.”        Tex. Health & Safety Code

§ 364.012(a)-(b); see also id. § 363.112(a) (similarly authorizing a municipality or

county to prohibit solid waste disposal if the municipality or county “specifically

designate[s] the area of the municipality or county, as appropriate, in which the

disposal of . . . solid waste will not be prohibited”). Here again, it is unreasonable

to conclude that the Legislature saw fit to pass legislation expressly limiting county

authority over something as locally significant as solid waste disposal, but yet

intended to give groundwater conservation districts broader authority over landfill

siting and operation by mere implication through a general mandate.

      D.     The District Cannot Dictate The Outcome Of The Permitting
             Process, But It Is Free To Participate In That Process

      Procedurally, the role of groundwater conservation districts and other

similarly situated entities in MSW landfill permitting proceedings before the

Commission is indistinguishable from that of the general public. While direct

coordination with the Commission afforded certain agencies is not afforded to the

District, the District is not without a voice in the MSW permitting process. In this

case, the District has provided comments to TCEQ regarding Post Oak’s pending

landfill permit application – in writing, as well as orally at a public meeting. See




                                         19
30 Tex. Admin. Code §§ 55.152-.156. Additionally, the District is participating in

the contested case hearing on the permit application. See id. §§ 55.201(b)(4), .203.

      This role for groundwater conservation districts in the landfill permitting

process was specifically – and publicly – addressed by TCEQ nearly a decade ago.

The Commission revised the entirety of its MSW rules in March 2006. See 31

Tex. Reg. 2502 (Mar. 24, 2006).          In the context of that rulemaking, the

Commission received and responded to comments on the proposed rule revisions.

One such comment stated that:

      TCEQ should require double [landfill] liners within the area of a
      groundwater district if that district passes a resolution asking that the
      TCEQ impose this requirement, as this would place the decision on
      the need to protect groundwater in the hands of those with expertise in
      a particular aquifer system.

Id. at 2572. TCEQ refused to promulgate any such requirement. In its response to

the comment, the Commission recognized the more limited role that groundwater

conservation districts play in the MSW landfill permitting process: “An affected

groundwater district or persons may comment or request a hearing regarding the

adequacy of groundwater protection in a permit application if they deem that a

double liner system is needed for groundwater protection.” Id. Accordingly,

nearly a decade ago, the Commission rejected the notion that a groundwater

conservation district could pass a resolution (or rule) that would dictate the

outcome of the MSW landfill permitting process, in whole or in part.

                                         20
II.   The District’s Claim Is Not Ripe

      The District should not be allowed to circumvent TCEQ’s public

participation process and pursue a premature challenge to Post Oak’s permit

application in the courts. While Post Oak’s application is pending before TCEQ,

the District should be required to exhaust its administrative remedies through the

established regulatory process, which, as discussed above, includes the opportunity

for public comments and a contested case hearing on the application. The District

will have recourse in the courts if it exhausts its administrative remedies and if the

Commission ultimately decides to issue Post Oak a MSW landfill permit. In the

interim, while the administrative proceedings are ongoing, the District will not be

harmed, as Post Oak will not have the requisite authorization to construct and

operate the MSW landfill that the District seeks to prohibit.




                                         21
                                     PRAYER
      For the reasons set forth above and in Appellants’ briefs, amici curiae pray

that the Court reverse the trial court’s order denying the Commission’s plea to the

jurisdiction and render judgment dismissing the District’s claim.


                                              Respectfully submitted,

                                              By: /s/ Bryan J. Moore
                                              Bryan J. Moore
                                              State Bar No. 24044842
                                              bmoore@bdlaw.com
                                              BEVERIDGE & DIAMOND, P.C.
                                              98 San Jacinto Blvd., Suite 1420
                                              Austin, Texas 78701
                                              Telephone: 512.891.8000
                                              Facsimile: 512.391.8099
                                              COUNSEL FOR AMICUS CURIAE
                                              WASTE MANAGEMENT OF TEXAS, INC.

                                              By: /s/ Amanda M. Martin
                                              Amanda M. Martin
                                              State Bar No. 24074744
                                              amartin@txbiz.org
                                              TEXAS ASS’N OF BUSINESS
                                              1209 Nueces Street
                                              Austin, Texas 78701
                                              Telephone: 512.637.7708
                                              Facsimile: 512.477.0836

                                              COUNSEL FOR AMICUS CURIAE
                                              TEXAS ASSOCIATION OF BUSINESS




                                         22
                        CERTIFICATE OF SERVICE

      I certify that a copy of the Brief of Amici Curiae Waste Management of
Texas, Inc. and Texas Association of Business was served on counsel of record via
eFileTexas.gov and via email on the 4th day of November 2015, addressed as
follows:
      Ken Paxton                              ken.paxton@texasattorneygeneral.gov
      Charles E. Roy                          charles.roy@texasattorneygeneral.gov
      Scott A. Keller                         scott.keller@texasattorneygeneral.gov
      Bill Davis                              bill.davis@texasattorneygeneral.gov
      Nancy Elizabeth Olinger                 nancy.olinger@texasattorneygeneral.gov
      Cynthia Woelk                           cynthia.woelk@texasattorneygeneral.gov
      OFFICE OF THE ATTORNEY GENERAL
      P.O. Box 12548 (MC 059)
      Austin, Texas 78711-2548
      Telephone: (512) 936-1896
      Facsimile: (512) 370-9191

      Attorneys for Texas Commission on Environmental Quality
      Marisa Perales                          marisa@lf-lawfirm.com
      F REDERICK , P ERALES , A LLMON
      & R OCKWELL , PC
      707 Rio Grande, Suite 200
      Austin, Texas 77552-6894
      Telephone: (512) 469-6000

      Attorneys for Guadalupe County Groundwater Conservation District

      Christopher L. Dodson                   chris.dodson@bgllp.com
      Mark R. Wulfe                           mark.wulfe@bgllp.com
      BRACEWELL & GIULIANI L.L.P.
      711 Louisiana Street, Suite 2300
      Houston, Texas 77002-2770
      Telephone: (713) 223-2300
      Facsimile: (713) 221-1212

      Attorneys for Post Oak Clean Green, Inc.


                                         23
       John A. Riley                                  jriley@jgdpc.com
       JACKSON GILMOUR & DOBBS, P.C.
       1115 San Jacinto Blvd., Suite 275
       Austin, Texas 78701
       Telephone: (512) 574-8861
       Facsimile: (512) 574-8861

       Attorneys for Post Oak Clean Green, Inc.


                                                /s/ Bryan J. Moore
                                                Bryan J. Moore


                          CERTIFICATE OF COMPLIANCE
         This brief complies with the length limitations of Tex. R. App. P. 9.4(i)(3)

because this brief consists of 3,771 words, excluding the parts of the brief exempted

by Tex. R. App. P. 9.4(i)(1).
                                                /s/ Bryan J. Moore
                                                Bryan J. Moore




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