A Court-Side Seat: The Fifth Circuit Tackles Groundwater, Title V of the CAA and the Bone Cave Harvestman


The Fifth Circuit released three new decisions last Friday.

On May 29, 2020. The US Court of Appeals for the Fifth Circuit released three opinions in environmental cases: Stratta, et al. v. Roe, Director of the Brazos Valley Groundwater District; Environmental Integrity Project, et al. v. EPA; and American Stewards of Liberty, et al,. v. U.S. Department of the Interior.

Stratta, et al. v. Roe, Director of the Brazos Valley Groundwater District
In the Stratta case, two landowners sued the Brazos Valley Groundwater Conservation District (BVGWCD) under 42 USC Section 1983, with one plaintiff alleging that the actions of the district’s board of directors essentially violated their permitting authority by illegally permitting a groundwater well operated by the City of Bryan, which drained groundwater from under his property, amounting to a taking of his property, and generally failing to grant him any relief. The other plaintiff, a board member, was not allowed to speak before the BVGWCD, arguably in violation of his constitutional rights. The trial court dismissed this litigation, holding that the District was entitled to immunity under the Eleventh Amendment, and that the first plaintiff did not have a property interest in this groundwater. The appeals court reversed, holding that under Texas law, the District did not enjoy any Eleventh Amendment immunity; the District did not have any statewide jurisdiction and was not an “arm of the state,” and accordingly was not immune from a federal court lawsuit. Also, the Texas Supreme Court has recognized that groundwater is a property interest entitled to protection and the plaintiff could seek redress for a takings violation in a federal lawsuit. Finally, the trial court should not have abstained from ruling in this matter on the basis of the “Burford doctrine.” However, the appeals court agreed that that the second plaintiff did not make out a case for a violation of his constitutional rights in view of the provisions of the Texas Open Meetings Act.

Environmental Integrity Project, et al. v. EPA
The Environmental Integrity Project lawsuit was an appeal of a final administrative order of EPA regarding the provisions of Title V of the Clean Air Act (CAA). At issue was EPA’s interpretation of the Title V statutory provisions, and the appeals court upheld the decision of the agency, according it “Skidmore,” but not “Chevron” deference. EPA, in its latest interpretation of the Act, decided that CAA Title I preconstruction new source review permitting decisions could not subject to further review in the Title V review process. The plaintiffs, hoping to challenge the TCEQ’s preconstruction authorization of a unit at Exxon Mobil’s Baytown, Texas Olefins Plant, argued that the agency had misconstrued Title V. The Fifth Circuit disagreed.

American Stewards of Liberty, et al,. v. U.S. Department of the Interior
This case involves the Endangered Species Act. Years ago, the Fish and Wildlife Service listed an arachnid, the Bone Cave harvestman (known to live only in Central Texas), as an endangered species. The plaintiffs petitioned the Service to delist this species on scientific grounds, but the Service declined to so. A lawsuit followed, based on the Administrative Procedure Act, and the Service relented; however, two Intervenor plaintiffs were allowed by the trial court to intervene, and they argued that the listing of this arachnid violated the Commerce Clause. The court rejected this claim, which the Fifth Circuit upheld. Several years ago, the Fifth Circuit decided that this Commerce Clause argument was without merit (see GDF Realty Investment v. Norton, 326 F. 3d 622 (2003)), and in addition, the Intervenors did not file a timely complaint. The relevant federal statute of limitations is six years, and since the species was initially listed in 1988, the statute of limitations required the dismissal of this complaint.