Beveridge & Diamond
 

Beveridge & Diamond Leads Successful Defense of Power Plant Permit in Case of First Impression in Texas

Beveridge & Diamond, P.C., January 31, 2012

Beveridge & Diamond’s Texas office secured a ruling from a Texas state district court denying novel claims that a wastewater permit for a Texas power plant was issued by the Texas Commission on Environmental Quality in violation of the plaintiffs’ due process rights.  The district court’s ruling signals that the principles of associational standing and adequate representation, as recognized by the U.S. Supreme Court and the Texas Supreme Court, are applicable to administrative hearings in Texas. 

In the district court case, the plaintiffs claimed that they were improperly denied party status in a state administrative hearing to contest the merits of the wastewater permit, although the plaintiffs in the district court case were members of an association that participated fully as a party to the administrative hearing.  From the preliminary phase to issuance of the permit, the administrative hearing spanned over 14 months and included a four-day merits hearing during which the parties presented and examined numerous expert witnesses. 

Although their association was named and participated as a party to the administrative hearing, the district court plaintiffs also sought standing in the administrative proceeding in their individual capacities.  Claiming that their standing bid was unlawfully rejected, the plaintiffs filed suit in state district court after the close of the administrative proceedings and asked the district court to set aside the permit and remand the case to the agency for a re-trial of the entire administrative hearing.

The district court case presented associational representation issues of first impression in Texas – i.e., whether the plaintiffs were adequately represented in the administrative hearing by their association such that any due process concerns were satisfied.  The parties briefed the issues to the district court and, immediately following oral argument, the district judge ruled from the bench denying the plaintiffs’ claims. 

Two additional lawsuits remain pending before the district court challenging issuance of the same wastewater permit on other grounds.  The disposition of those cases could have additional implications for contested administrative hearings in Texas.

Bryan Moore, a Principal in the Firm’s Texas office, serves as lead counsel for the permittee and argued the case before the district court.  The district court’s final order is available here.  To read the district court brief filed by Beveridge & Diamond, please click here.

For more information, please contact Bryan Moore at bmoore@bdlaw.com.