Texas Bar Journal • December 2024

Environmental Law

Written by Natasha J. Martin and Bobby Millad Saleh

Air, emerging contaminants, and agency authority and deference were at the forefront of environmental law this past year, some of which is summarized below.

U.S. Supreme Court
On June 28, 2024, the Supreme Court issued a pivotal ruling in Loper Bright Enterprises v. Raimondo,¹ on the extent of federal agencies’ authority to regulate commercial fishing. This decision overturned the 40-year-old Chevron doctrine that allowed judges to defer to agency interpretations of ambiguous statutes.

In a 6-3 decision, the court found that a National Oceanic and Atmospheric Administration (NOAA) regulation requiring federal observers on fishing vessels exceeded the agency’s authority under the Magnuson-Stevens Act. Federal agencies cannot impose burdens without clear statutory support. This landmark decision significantly changed how courts review agency regulations.

On June 21, 2024, the court declined a settlement in Texas v. New Mexico,² a decade-long dispute over groundwater production. Both states are parties to the 1938 Rio Grande Compact, which divides the river’s waters among Colorado, New Mexico, and Texas. Ten years ago, Texas sued New Mexico for violating the compact, alleging excessive groundwater pumping depleted Rio Grande supplies for Texas. Over federal objections, both states agreed to a settlement resolving claims while allowing New Mexico to continue pumping. The court rejected the settlement, finding that approving the settlement would dismiss federal claims despite the U.S. still having interests in the compact.

U.S. Court of Appeals for the 5th Circuit
In Inhance Technologies, L.L.C. v. United States Environmental Protection Agency,3 the 5th Circuit addressed a challenge from Inhance Technologies, a Texas company fluorinating plastic containers for over 41 years. Inhance argued that the EPA overstepped its authority under the Toxic Substances Control Act (TSCA) by requiring additional chemical testing and reporting, claiming these requirements were overly burdensome. The court ruled that the EPA had indeed exceeded its statutory authority when it sought to prevent Inhance from manufacturing certain per- and polyfluoroalkyl substances (PFAS).

In SierraClubv.LouisianaDepartmentofEnvironmental Quality,⁴ the 5th Circuit upheld the LDEQ’s permit for a liquefied natural gas export facility. The Sierra Club argued that LDEQ approved the permit arbitrarily, as the facility’s emissions would exceed Clean Air Act National Ambient Air Quality Standards (NAAQS). The court found that LDEQ adequately assessed impacts using EPA emission factors and applied Best Available Control Technology to limit emissions. Decided on April 29, 2024, this case highlighted the deference courts often give to state agencies in permitting processes.

Texas Courts0
On June 14, 2024, the Supreme Court of Texas granted Save Our Springs’ petition to take 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.

Regulatory Changes
The EPA revised the national ambient air quality standards (NAAQS) for particulate matter (PM2.5) by lowering the primary annual standard from 12 µg/m3 to 9 µg/m3. The revised rule was effective on May 6, 2024.⁶

The EPA finalized the first drinking water standards for per- and polyfluoroalkyl substances (PFAS) in 2024.
By issuing a National Primary Drinking Water Regulation (NPDWR) under the Safe Drinking Water Act (SDWA) the EPA established a national standard with enforceable levels for six PFAS in public water systems. The rule became effective on June 25, 2024.⁷

On January 24, 2024, TCEQ adopted amendments to the Air Quality Standard Permit for Concrete Batch Plants. The adopted amendment updated the conditions of the standard permit to reflect an updated Air Quality Analysis.⁸

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

BOBBY MILLAD SALEHI is an associate of Graves Dougherty Hearon & Moody in Austin. His administrative and regulatory practice spans a number of state agencies, including TCEQ, the Public Utility Commission, the Railroad Commission of Texas, and the Texas Department of Banking. Specifically, Salehi handles matters related to groundwater conservation districts, TCEQ permitting, districts, regulatory enforcement, certificates of convenience and necessity, and water rights issues. Prior to joining the firm, he practiced for over four years in TCEQ’s Environmental Law Division.