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Southern Crushed Concrete Prevails in Texas Supreme Court Environmental Case


AUSTIN, February 15, 2013
-- The Supreme Court of Texas issued a unanimous opinion in Southern Crushed Concrete LLC v. City of Houston, No. 11-0270, on February 15, 2013, reversing the Fourteenth Court of Appeals and rendering judgment for Southern Crushed Concrete LLC (SCC).

The decision is the culmination of a clash between a TCEQ permit under the Texas Clean Air Act (TCAA) and an ordinance enacted by the City of Houston. The Supreme Court held that “[b]ecause the Ordinance makes it unlawful to build a concrete-crushing facility at a location that was specifically authorized under the [TCEQ]’s orders by virtue of the permit, we hold that the Ordinance is preempted.”

Baker Botts L.L.P. represented Southern Crushed Concrete in this matter.

The TCEQ permit at issue authorizes SCC to crush and recycle concrete at one of its locations in Houston. The City opposed the permit in administrative proceedings. After an Administrative Law Judge recommended approval, the City enacted a concrete-crushing ordinance requiring not only a TCEQ permit, but also a permit from the City. While SCC could not satisfy the more restrictive requirements of the ordinance, it met the requirements of the TCAA and the TCEQ’s regulations. The TCEQ accordingly approved SCC’s permit application.

The City, however, would not issue a permit to SCC. SCC brought suit, arguing that the TCAA preempted the ordinance. In particular, Section 382.113(b) states that “[a]n ordinance enacted by a municipality . . . may not make unlawful a condition or act approved or authorized under [the TCAA] or the [TCEQ]’s rules or orders.” The trial court nonetheless ruled for the City.

A divided panel of the Fourteenth Court of Appeals affirmed. It held that the purpose of the ordinance was to protect land values, not to regulate air emissions; consequently, under that theory, the ordinance could not conflict with the TCAA. Justice Jeff Brown dissented.

The Texas Supreme Court reversed in a 9-0 opinion by Justice Debra H. Lehrmann. The Court held that “the plain language” of the statute compelled a finding of preemption. Once the TCEQ has issued a permit under the TCAA, it is beyond a city’s power to “make unlawful” the “condition or act” that has been so approved.

The Court also rejected the notion that a city may evade this clear limitation by “purport[ing] to regulate land use, not air quality,” because “the statute does not draw that distinction, nor should it if state regulation is to be effective. If the City’s contention were true, a city could almost always circumvent section 382.113(b) and vitiate a [TCEQ] permit that it opposes by merely passing an ordinance that purports to regulate something other than air quality.”

The Court therefore reversed the judgment of the court of appeals and rendered judgment in favor of SCC. The ordinance “is [ ] preempted by the TCAA and unenforceable.”

The Texas Aggregates & Concrete Association filed an amicus curiae brief in support of SCC.

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