Year in Review • December 2023

Environmental Law

By Natasha J. Martin and Bobby M. Salehi

Water, climate change, emerging contaminants, and standing were at the forefront of environmental law in 2023, some of which is summarized below.

U.S. Supreme Court
On May 25, 2023, in Sackett v. Environmental Protection Agency,¹ the court restricted the regulation of wetlands by narrowing the definition of “waters of the United States” or WOTUS, under the Clean Water Act. Over 19 years ago, the Environmental Protection Agency, or EPA, exercised jurisdiction over water on the Sackett’s Idaho property because the water was near a ditch feeding into a creek, which fed into a navigable, intrastate lake. The court determined that the EPA acted outside of its authority. The water was not WOTUS. The court adopted the “relatively permanent” test defining WOTUS as an adjacent water body that (i) “is a relatively permanent body of water connected to traditional interstate navigable waters”; and (ii) has a “continuous surface connection with that water, making it difficult to determine where the ‘water’ ends, and the ‘wetland’ begins.”

Before the Sackett decision, several injunctions were filed against President Joe Biden’s 2023 WOTUS rule rolling back former President Donald Trump’s WOTUS rule. At least two of the injunctions were granted, and one of which was the State of Texas v. EPA,² which applies in Texas and Idaho.

U.S. Court of Appeals for the 5th Circuit
In Louisiana v. Biden,³ Louisiana and nine other states sued the Biden administration, seeking to invalidate an executive order directing federal agencies to consider the social cost of greenhouse gases when developing climate change policy. The court dismissed the claims for lack of standing and held that the states failed to show an injury in fact from the federal agencies’ consideration of dollar estimates derived from changes in emissions. Without an actual injury from the climate change cost benefit exercise, the “mere ‘possibility of regulation’ fails to satisfy the injury in fact.”

Watch for the 5th Circuit’s reconsideration of its decision in Environment Texas Citizen Lobby v. ExxonMobil Corporation.⁴ The court of appeals upheld a district court award of over $14 million in Clean Air Act penalties based on categories of violations (e.g., flaring, smoke, and haze) without considering the approximately 16,000 alleged violations individually. The court vacated its decisions and is rehearing the case to determine whether categorical harm provides standing.

Texas Courts
The Supreme Court of Texas is considering taking up TCEQ and The City of Dripping Springs v. Save Our Springs Alliance⁵ after the 8th Court of Appeals in El Paso’s decision in favor of TCEQ’s issuance of the city of Dripping Springs’ discharge and reuse permit. A primary issue is TCEQ’s antidegradation rule in the Texas Surface Water Quality Standards.

In TCEQ v. Vecinos Para El Bienestar De La Comunidad Costera,⁶ the 3rd Court of Appeals in Austin dismissed a lawsuit seeking judicial review of TCEQ’s issuance of a permit to a natural gas facility subject to the federal Natural Gas Act. Texas state courts lack jurisdiction where the federal statute confers original and exclusive jurisdiction to the 5th Circuit even though TCEQ issued the permit.

Regulatory Changes
Following the Sackettdecision, EPA revised its WOTUS rule to conform to the court’s definition of WOTUS. The revised rule was published and effective on September 8, 2023.⁷

The EPA is continuing its work to regulate “emerging contaminants,” including plans to establish a national drinking water standard for six per- and polyfluoroalkyl substances, or PFAS. EPA is also finalizing reporting and recordkeeping requirements for PFAS under the Toxic Substances Control Act with the rule effective on November 13, 2023.⁸

Watch for TCEQ’s amendment to the concrete batch plant standard permit.⁹ Adoption is expected in early 2024.

NATASHA J. MARTIN is a shareholder in Graves Dougherty Hearon & Moody in Austin. She has a diversified environmental law practice covering air and wastewater permitting, regulatory enforcement, and water rights issues. In addition to her community work, Martin serves on the governing boards for the State Bar of Texas Administrative and Public Law Section and the Real Estate Forms Committee.

BOBBY M. SALEHI is an associate at Graves Dougherty Hearon & Moody in Austin. He practices in the areas of TCEQ wastewater permitting, district creation, regulatory enforcement, and water rights issues. Prior to joining the firm, Salehi practiced for over four years in TCEQ’s Environmental Law Division.