Texas Commission on Environmental Quality and Dos Repúblicas Coal Partnership v. Maverick County, City of Eagle Pass, Environmental Defense Fund, Walter Herring, Ernesto Ibarra, Gabriel De La Cerda, Mike Hernandez, Boulware and Anson Family, Ltd., and Maverick County Environmental and Public Health Association ( 2022 )

Supreme Court of Texas
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No. 19-1108
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Texas Commission on Environmental Quality and
Dos Repúblicas Coal Partnership,
Petitioners,
v.
Maverick County, City of Eagle Pass, Environmental Defense
Fund, Walter Herring, Ernesto Ibarra, Gabriel De La Cerda,
Mike Hernandez, Boulware and Anson Family, Ltd., and
Maverick County Environmental and Public Health Association,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
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Argued October 27, 2021
JUSTICE BLACKLOCK delivered the opinion of the Court.
In 2013, Dos Repúblicas Coal Partnership (DRCP) applied to the
Texas Commission on Environmental Quality for renewal of a permit for
wastewater discharge at a coal mine. TCEQ granted the permit. Years
later, the primary question before this Court is whether, all along,
DRCP was the correct permit applicant. We hold that it was.
The parties agree that TCEQ rules required both “the operator
and the owner [of the facility]” to apply for a permit. 30 TEX. ADMIN.
CODE § 305.43(a). DRCP owns the mine. It hired a contractor to conduct
day-to-day activities at the mine. The dispute is whether DRCP or the
contractor is the mine’s “operator.” TCEQ’s rules define “operator” as
“[t]he person responsible for the overall operation of a facility.” Id.
§ 305.2(24). TCEQ concluded that DRCP remains the mine’s operator
because it retains overall responsibility for the mine’s operation despite
having contracted away day-to-day duties.
The court of appeals disagreed. Applying its precedent, it
understood “operator” to mean “the entity responsible for [the] personal
performance of causing the [facility] to function.” See Heritage on San
Gabriel Homeowners Ass’n v. Tex. Comm’n on Env’t Quality, 393 S.W.3d
417, 430 (Tex. App.—Austin 2012, pet. denied). Because DRCP hired a
contractor to personally perform the daily running of the mine, the court
of appeals concluded that the contractor is the mine’s “operator” and
therefore a required—but absent—permit applicant.
When a statute or rule defines its terms, courts should not
construct a restated definition using alternative verbiage that adds or
subtracts substantive requirements or limiting factors. The court of
appeals erred by substituting a judicially crafted definition of “operator”
for the definition provided by TCEQ’s rules. Even if the definition
supplied by the rule’s drafters leaves room for interpretation in some
cases, the touchstone must remain the text of the definition—not a
judicial paraphrase of it.
2
Applying the rule’s definition of “operator” to this case, we hold
that substantial evidence supports TCEQ’s conclusion that DRCP—
despite having contracted out the day-to-day running of the mine—
remains “responsible” for the “overall operation” of the mine. The
“personal performance” requirement proposed by Respondents imposes
an additional limiting factor not dictated by the rules themselves. By
requiring that a permit applicant have responsibility only for the
facility’s overall operation, the rule is best read to reject—rather than
embrace—the narrowing “personal performance” requirement that
dictated the outcome below. The judgment of the court of appeals is
reversed, and the case is remanded to that court for consideration of the
parties’ remaining arguments.
I.
The Legislature authorized TCEQ to “issue permits and
amendments to permits for the discharge of waste or pollutants into or
adjacent to water in the state.” TEX. WATER CODE § 26.027(a). As for
who must apply for such a permit or what a permit application will look
like, the Legislature vested TCEQ with broad discretion: “A person
desiring to obtain a permit or to amend a permit shall submit an
application to [TCEQ] containing all information reasonably required by
[TCEQ].” Id. § 26.027(b). TCEQ has adopted administrative rules
governing applications for a “Texas Pollutant Discharge Elimination
System” (TPDES) permit, the permit for which DRCP applied. See
generally 30 TEX. ADMIN. CODE § 305.1 et seq. One such rule—which the
parties agree applies here—is that “it is the duty of the operator and the
owner to submit an application for a permit.” Id. § 305.43(a).
3
Once TCEQ’s executive director determines an application is
“administratively complete,” the applicant must provide public notice of
its intent to obtain the permit. TEX. WATER CODE § 5.552(b)(1). The
executive director then “shall conduct a technical review of and issue a
preliminary decision on the application.” Id. § 5.553(a). The applicant
must publish notice of the preliminary decision, which is then subject to
public comment. Id. § 5.553(b)–(c). A public meeting and a contested
case hearing may follow. See id. §§ 5.554 (requiring public meetings
during the comment period), 5.556(a) (allowing for contested case
hearings).
In 2009, DRCP acquired a coal mine in Maverick County. It
contracted with Camino Real Fuels, LLC (CRF) to “develop, construct,
operate and perform on-going reclamation at the Mine and to remove
and deliver coal from the Mine” to DRCP. The mine is near the City of
Eagle Pass. Wastewater from the mine may flow into nearby waterways
that feed into the Rio Grande River, from which the City gets its water
supply. Because of these wastewater discharges, DRCP needed a
TPDES permit. See id. § 26.121.
DRCP’s predecessor held a TPDES permit for the mine dating to
1994 (renewed in 2001, 2006, and 2011) that was set to expire on
September 1, 2015. DRCP alone applied for the renewal of the permit.
DRCP started the renewal process in September 2013. Relative to the
existing permit, DRCP requested permission to alter its wastewater
management practices in various ways, the technicalities of which are
not relevant to our decision.
4
In January 2014, TCEQ’s executive director determined DRCP’s
application administratively complete. See id. § 5.552(a). The executive
director completed his technical review in December 2014, after which
he issued a “Notice of Application and Preliminary Decision.” See id.
§ 5.553(a). This document granted a “draft permit” and gave notice of a
public meeting on the permit. See id. § 5.553(b)–(c) (requiring notice of
public meeting). During the meeting, TCEQ took public comments. See
id. §§ 5.554, 5.555(a) (requiring the executive director to respond to
relevant and material public comments).
At relevant times during the administrative process, Maverick
County, the City of Eagle Pass, the Environmental Defense Fund,
Walter Herring, Ernesto Ibarra, Gabriel De La Cerda, Mike Hernandez,
Boulware and Anson Family, Ltd., and the Maverick County
Environmental and Public Health Association (collectively “Permit
Contestants”) opposed the permit. See id. § 5.556(a), (c), (d) (authorizing
“affected person[s]” to contest the executive director’s decision or request
a contested case hearing). They challenged TCEQ’s conclusion that
DRCP was the mine’s “operator” and raised many other environmental
and property-rights complaints.
On January 15, 2015, DRCP requested that TCEQ refer the
application to SOAH for a contested case hearing. Id. § 5.557(a). Permit
Contestants were admitted as parties. In November 2015, two
administrative law judges held a four-day hearing. In addition to
considering a variety of substantive objections to the permit, the ALJs
considered whether DRCP’s contractor, CRF, should have applied as the
mine’s “operator.”
5
In April 2016, the ALJs issued a proposal for decision (PFD),
recommending TCEQ grant the permit with “the addition of a boron
limit and a requirement that aluminum be monitored.” On the
“operator” question, the ALJs found that DRCP was both the owner and
the operator of the mine. They noted that while CRF performed the
day-to-day work of running the mine, CRF was merely a contractor
acting under DRCP’s direction. The ALJs acknowledged testimony that
DRCP only had “financial responsibility” for the mine, while CRF had
“operational responsibility.” They pointed to other evidence, however,
tending to show that DRCP was responsible for the overall operation of
the mine despite CRF’s responsibility for day-to-day activities:
DRCP is solely responsible for the acquisition and
maintenance of all interests and rights in real property and
the reserves, provides its requirements and expectations to
CRF, approves every plan and budget prior to the
incurrence of any costs by CRF, pays all actual costs during
design and construction of the Mine, pays all operation
costs during production at the Mine, and is required to
retain, maintain, and comply with all permits.
PFD at 16. The ALJs also noted that a DRCP representative visits the
mine daily to provide oversight.
TCEQ largely agreed with the PFD, but it found that the boron
limit and aluminum monitoring requirements were unnecessary. See
TEX. GOV’T CODE § 2003.047(m) (authorizing TCEQ to amend factual
findings contained in a PFD). TCEQ instead required water-quality
testing periodically over the life of the permit. In July 2016, TCEQ
issued a final order granting DRCP’s application with modifications.
Permit Contestants sued TCEQ in Travis County District Court.
See id. § 2001.171 (authorizing judicial review of a final decision in a
6
contested case). DRCP intervened. Permit Contestants raised the same
issues they raised before SOAH, with the addition of an objection to
TCEQ’s modification of the PFD. The district court held that DRCP was
not the mine’s operator and that TCEQ’s decision to the contrary “was
not reasonably supported by substantial evidence considering the
reliable and probative evidence in the record as a whole, and was
arbitrary and capricious.” The district court affirmed TCEQ’s decision
on all other issues. Cf. id. § 2001.174 (reviewing court may affirm in
whole or in part or reverse or remand for further proceedings).
Both sides appealed. 628 S.W.3d 497, 500 (Tex. App.—Austin
2019). DRCP and TCEQ appealed the “operator” issue. Id. Permit
Contestants appealed on issues affirmed by the district court. Id. The
court of appeals affirmed the district court’s holding that DRCP was not
the “operator” of the mine. Id. Relying on its prior decision in Heritage
v. TCEQ, 393 S.W.3d 417, the court of appeals understood “operator” to
mean “the entity responsible for its personal performance of causing the
[facility] to function.” 628 S.W.3d at 506. Applying this definition, the
court of appeals concluded that substantial evidence did not support
TCEQ’s finding that DRCP was the mine’s operator. Id. at 511. As a
result, the application lacked the required applicant and should have
been denied. Id. at 511–12. Having concluded that the permit should
not have been granted regardless of its substantive content, the court of
appeals held it lacked jurisdiction over the remaining issues regarding
the content of the permit. It vacated the district court’s judgment as to
those issues. Id. at 512.
7
TCEQ and DRCP ask this Court to reinstate TCEQ’s decision in
its entirety. They argue that the court of appeals departed from the
plain text of TCEQ’s administrative definition of “operator” by
employing the court’s own definition. They also complain of the court of
appeals’ application of the substantial-evidence rule. Permit
Contestants contend that Heritage’s “more precise” definition of
“operator” controls and, applying that definition, there is no substantial
evidence to support TCEQ’s conclusion that DRCP is the mine’s
operator. The parties also dispute whether the court of appeals should
have—and, indeed, could have—addressed Permit Contestants’
remaining issues after ruling on the “operator” issue.
II.
Courts reviewing agency action under the Administrative
Procedure Act may reverse or remand agency orders, and:
shall reverse or remand the case for further proceedings if
substantial rights of the appellant have been prejudiced
because the administrative findings, inferences,
conclusions, or decisions are:
(A) in violation of a constitutional or statutory
provision;
(B) in excess of the agency’s statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial
evidence considering the reliable and probative
evidence in the record as a whole; or
(F) arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of
discretion.
TEX. GOV’T CODE § 2001.174(2).
8
The parties agree that we should review TCEQ’s conclusion that
DRCP is the mine’s “operator” under subpart E, which asks whether the
agency’s decision is “reasonably supported by substantial evidence.”
When applying the substantial-evidence rule, “a court may not
substitute its judgment for the judgment of the state agency on the
weight of the evidence on questions committed to agency discretion.” Id.
§ 2001.174. “The true test is not whether the agency reached the correct
conclusion, but whether some reasonable basis exists in the record for
the action taken by the agency.” Tex. Health Facilities Comm’n v.
Charter Med.–Dall., Inc., 665 S.W.2d 446, 452 (Tex. 1984).
III.
The parties’ arguments can be distilled into three questions:
(1) how to define “operator”; (2) whether there was substantial evidence
that DRCP is the mine’s “operator”; and (3) whether the court of appeals
should have ruled on the remaining issues. We address each question
in turn.
A.
Before we can apply the substantial-evidence rule to TCEQ’s
decision that DRCP is the mine’s operator, we must understand the
meaning of the word “operator,” as TCEQ’s rules use it. This definitional
inquiry raises a predicate legal question, which we address de novo. See
R.R. Comm’n v. Tex. Citizens for a Safe Future & Clean Water, 336
S.W.3d 619, 624 (Tex. 2011).
The Legislature conferred on TCEQ very broad discretion to set
the requirements for permit applications of this sort. See TEX. WATER
CODE § 26.027(b). Applicants must “submit an application [] containing
9
all information reasonably required by [TCEQ].” Id. The Legislature
authorized TCEQ to promulgate rules governing TPDES permits. See
id. §§ 26.011, 26.027. TCEQ has done so. See generally 30 TEX. ADMIN.
CODE § 305.1 et seq. Despite its broad statutory authority over
applications, once TCEQ promulgates rules governing the application
process, it must follow them. TEX. WATER CODE § 5.234 (“An
application . . . shall be presented to the executive director and handled
as provided . . . in the rules adopted by the [TCEQ].”). This case is about
whether it did so.
Courts interpret agency regulations “using the same principles
we apply when construing statutes.” Patients Med. Ctr. v. Facility Ins.
Co., 623 S.W.3d 336, 341 (Tex. 2021). The starting point is the rule’s
plain text. TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439
(Tex. 2011). As with statutes, when a rule “assigns a particular meaning
to a term, we are bound by” it. Id. It is often stated that courts will
uphold an agency’s interpretation of its own rule if the interpretation “is
reasonable and does not contradict [the rule’s] plain language.” R.R.
Comm’n, 336 S.W.3d at 625 (quotation omitted). Even so, courts must
first determine what the rule’s text means before they can decide
whether the agency’s interpretation contradicts the text. See, e.g.,
Harris Cnty. Appraisal Dist. v. Tex. Workforce Comm’n, 519 S.W.3d 113,
119 (Tex. 2017).
The rule at issue requires both “the operator and the owner [of
the facility]” to apply for a TPDES permit. 30 TEX. ADMIN. CODE
10
§ 305.43(a).1 Another provision defines the term “operator” as “[t]he
person responsible for the overall operation of a facility.” Id. § 305.2(24).
In a dispute over who must apply as the “operator,” courts are bound by
the definition provided in TCEQ’s rules, just as they are bound when the
Legislature defines terms in a statute. See Combs, 340 S.W.3d at 439.
Following its precedent, the court of appeals understood
“operator” to mean “the entity responsible for its personal performance
of causing the facility to function.” 628 S.W.3d at 505 (quoting Heritage,
393 S.W.3d at 430). In Heritage, landowners challenged TCEQ’s order
concluding that Waste Management was the “operator” of a landfill. 393
S.W.3d at 422, 426.2 The court of appeals agreed with TCEQ. In so
1 The full text of the relevant provision is:
(a) It is the duty of the owner of a facility to submit an
application for a permit or a post-closure order. However, if the
facility is owned by one person and operated by another and the
executive director determines that special circumstances exist
where the operator or the operator and the owner should both
apply for a permit or a post-closure order, and for all Texas
Pollutant Discharge Elimination System permits, it is the duty
of the operator and the owner to submit an application for a
permit.
The parties agree that only the final portion of the provision, specific to TPDES
permits, applies here.
2 Petitioners argue that Heritage has no application here because it
involved a different category of permit. But the disputed definition of
“operator” applies to both wastewater and solid-waste permits. See 30 TEX.
ADMIN. CODE § 305.2 (“The following words and terms, [including ‘operator,’]
when used in this chapter, have the following meanings.”); see also RSUI
Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 126 (Tex. 2015) (“Generally, the
law recognizes ‘a natural presumption that identical words used in different
parts of the same act are intended to have the same meaning.’” (quoting Atl.
Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932))).
11
doing, it relied on dictionary definitions of “operates”—“to cause to
function usu[ally] by direct personal effort”—and “operation”—“doing or
performing especially of action.” 393 S.W.3d at 428–30 (citing
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002)). After
lengthy analysis, the court summarized its understanding of “operator”
using the “personal performance” language quoted above. Id. at 430.3
It bears noting that Heritage affirmed TCEQ’s decision that
Waste Management was the “operator” and therefore the correct
applicant. When Heritage is read in its context, as all judicial decisions
should be, the court employed the “personal performance” concept not to
exclude parties from the definition of “operator” but to explain why the
definition included Waste Management. And it did so within a statutory
scheme that gives TCEQ remarkably broad discretion to determine
which entities must file applications. See TEX. WATER CODE § 26.027(b).
Nevertheless, the court of appeals below applied the “personal
performance” paraphrase as if it were the governing definition of
“operator.” Applying Heritage in this way was error. A judicial
paraphrase of a legislatively supplied rule of decision—no matter how
well-reasoned or suitable to the case then before the court—does not
become the rule of decision applicable to future cases. That role is
reserved for the text chosen by the Legislature—or, in this case, by an
3 Even if the court of appeals was correct that DRCP was the wrong
applicant, Permit Contestants would only be entitled to relief under the APA
“if substantial rights of the appellant have been prejudiced because” of the
error. TEX. GOV’T CODE § 2001.174(2). Petitioners have not argued that
Permit Contestants do not satisfy this requirement, and we express no opinion
on that question.
12
agency acting with the Legislature’s permission. See PHI, Inc. v. Tex.
Juv. Just. Dep’t, 593 S.W.3d 296, 305 (Tex. 2019) (holding that a
description of a statute in a judicial “opinion is not itself the rule of
decision. That role is reserved for the statute.”).
Here, the governing definition of “operator,” to which courts are
not free to add or subtract verbiage, is “[t]he person responsible for the
overall operation of a facility.” 30 TEX. ADMIN. CODE § 305.2(24).
Relative to the definition provided by the rule, the Heritage
reformulation injects the limiting principle of “personal performance.”
The effect on the definition is to replace the rules’ use of “overall
operation” with the court’s use of “personal performance.”
Understanding “operation” to mean solely “personal performance” may
make it easier to identify the operator by clarifying and limiting the
scope of what counts as “operation.” But a court’s principal goal when
interpreting text is not to achieve simplicity or ease of application—
though these would be by-products of a well-drafted rule. Instead, a
court’s duty is to stick to the text chosen by the rule-makers, without
adding to it or subtracting from it.
So what does it mean to be “responsible for the overall operation
of the facility”? Permit Contestants argue that “operation” entails
“flipping the switches”—personally performing the tasks required to
operate the facility. TCEQ and DRCP, on the other hand, argue that
“operation” entails the ultimate authority to make decisions about how
the facility will be operated. In a vacuum, neither is an unreasonable
understanding of the word “operation.” But we are not in a vacuum. We
are applying the text of the rule. And the rule itself tells us what kind
13
of operation it envisions—“overall operation.” We need look only at the
modifier “overall,” a word chosen by the rulemakers, to resolve the
parties’ disagreement about the rule’s meaning.4
The question, properly framed, is not what “operation” means.
Looking at the entire definition, the questions are what “overall
operation” means, and what it means to be “responsible” for it. When
we focus on all the words contained in the rule—not on dictionaries
defining one of them—it becomes clear that TCEQ’s approach is
well-supported by the text of its rule. The court of appeals erred by
excluding from “operator” those entities who are responsible for overall
operations even though they may not conduct daily operations.5
4 Permit Contestants argue that the Court should look to the federal
Environmental Protection Agency’s (EPA) view of “operator” because TCEQ
amended its rules to include the operator requirement at the behest of the
EPA. See 15 Tex. Reg. 5492, 5493 (1990). Permit Contestants assert that
“EPA’s understanding as early as 1980 was that operational control, not
financial or some other class of control, was the marker of an entity that needed
to apply for the permit.” Even so, EPA’s definition is not any narrower than
TCEQ’s. As the court of appeals noted, “[t]he federal regulations do not
specifically define ‘operator’ as distinct from ‘owner’; rather, a definition is
provided for ‘owner or operator,’ which ‘means the owner or operator of any
facility or activity subject to regulation under the NPDES program.’” 628
S.W.3d at 504 n.6 (quoting 40 C.F.R. § 122.2). And, EPA reviewed and had no
objection to the draft permit here.
5 TCEQ advances its own restatement of the rule’s definition of
“operator”: “an entity (owner or not) that is liable to be called on to answer, in
general and taking everything into account, for the mine’s management or
manner of functioning.” We decline to adopt that formulation, not because of
any obvious defect in its substance, but because doing so would risk falling into
the same error as the court of appeals. TCEQ’s proffered paraphrase is full of
words not contained in the rule itself, such as “liable,” “in general,” and
“management.” Such concepts may be helpful, in some cases, to courts
grappling with what it means to be “responsible for the overall operation of the
14
B.
We next address whether substantial evidence supports TCEQ’s
conclusion that DRCP was the mine’s operator. “The question whether
an agency’s determination meets [the substantial-evidence] standard is
one of law.” Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566
(Tex. 2000). Under substantial-evidence review, we consider “whether
any evidence supports the [agency’s] determination.” Pub. Util. Comm’n
v. Tex. Indus. Energy Consumers, 620 S.W.3d 418, 427 (Tex. 2021). We
ask “not whether the agency’s decision is correct, but whether the record
demonstrates a reasonable basis for it.” Ne. Indep. Sch. Dist. v. Riou,
598 S.W.3d 243, 251 (Tex. 2020). “The findings, inferences, conclusions,
and decisions of an administrative agency are presumed to be supported
by substantial evidence, and the burden is on the contestant to prove
otherwise.” Charter Med.–Dall., Inc., 665 S.W.2d at 453.
In the Findings of Fact section of its Order granting the permit,
TCEQ concluded the following:
40. Based on the Contract Mining Agreement signed by Mr.
Gonzalez Saravia Coss, DRCP is solely responsible for the
acquisition and maintenance of all interests and rights in
real property and the reserves, provides its requirements
and expectations to CRF, approves every plan and budget
prior to the incurrence of any costs by CRF, pays all actual
costs during design and construction of the Eagle Pass
Mine, pays all operation costs during production at the
facility.” In other cases, undue focus on these extraneous words might inject
limiting or expanding factors not justified by the text of the rule. If TCEQ
wants to amend its rules’ definition of “operator” to include these additional
concepts, it should do so through the appropriate process, not through
litigation.
15
Eagle Pass Mine, and is required to retain and maintain
all permits.
41. DRCP has an office in Eagle Pass, and a DRCP
representative visits the site on a daily basis to oversee all
the functions for which it has responsibility.
42. DRCP has ownership and control of mine operations,
including activities subject to the TPDES permit; has
responsibility over permit compliance, including the
TPDES permit; is integrally involved in the activities at
the Eagle Pass Mine; and has financial responsibility over
the operations at the Eagle Pass Mine.
Based on these findings of fact, TCEQ concluded that DRCP was the
proper permittee as both the mine’s owner and its operator.
Permit Contestants object to TCEQ’s conclusion primarily
because, in their view, it cannot be squared with Heritage’s emphasis on
personal performance, which they contrast with financial responsibility
or high-level oversight. We have already explained why the court of
appeals should not have viewed “operation” as entailing only personal
performance. Any analysis of the evidence through the Heritage lens is
therefore unhelpful, and this renders most of Permit Contestants’
arguments about the evidence inapposite.6 As explained above, the
rule’s definition of “operator” includes the decision-making entity with
responsibility for overall operations, even if that entity is not personally
performing the operations. This understanding of who qualifies as an
6 Respondents come close to conceding that, unless Heritage’s
understanding of “operator” controls, they cannot win under the substantial-
evidence rule. See Maverick Cnty. Resp. Br. at 11 (“Unless the court of appeals
was wrong in its understanding of the meaning of ‘operator,’ the evidence to
which Petitioners point to claim that DRCP is the operator just does not reach
the ‘scintilla’ level; it is so weak as to do no more than create a mere surmise
or suspicion of the fact it is claimed to support.”).
16
“operator” must inform the inquiry into whether substantial evidence
supports the conclusion that DRCP is one.
Viewing the record as a whole and employing an understanding
of “operator” based solely on the rule’s text, we hold that substantial
evidence in the record supports TCEQ’s conclusion that DRCP is the
mine’s operator. As noted above, TCEQ made several findings of fact in
support of its conclusion that DRCP is the mine’s “operator.” DRCP
owns the mine and “control[s]” mine operations, including activities
subject to the TPDES permit. DRCP is “integrally involved in the
activities” at the mine. In addition to having “financial responsibil[ity]”
for mine operations,7 DRCP must approve each plan and budget before
CRF may incur costs. DRCP “provides its requirements and
expectations to CRF.”8 DRCP is “solely responsible” for the acquisition
and maintenance of all interests and rights in real property and
reserves. DRCP is responsible for TPDES permit compliance. DRCP
retains and maintains all permits. And finally, a DRCP representative
from DRCP’s Eagle Pass office “visits the site on a daily basis to oversee
7 The parties and the court of appeals focus on a distinction between
“financial responsibility” and “operational responsibility.” We need not explore
that distinction, however, because even assuming the distinction is valid, some
evidence supports the conclusion that DRCP retained operational control—
particularly, the requirement that it approve plans and budgets, its provision
of requirements and expectations to CRF, its responsibility for permit
compliance, and the daily presence of its representative to provide oversight.
8 A DRCP officer described the relationship: “DRCP provides its
requirements and expectations to CRF. For example, this could relate to
amount of coal required. Based on these requirements, CRF develops a mine
plan in which it describes the necessary steps to comply with DRCP’s
expectations. . . . DRCP must, however, approve the plan and budget prior to
the incurrence of any costs by CRF.”
17
all the functions for which [DRCP] has responsibility.” See TCEQ Order,
Findings of Fact at 5, findings 40–42.9
All of this evidence together demonstrates “a reasonable basis in
the record” on which TCEQ could have concluded that DRCP is not
merely a passive owner who has given responsibility for overall
operations to someone else. Instead, substantial evidence supports
TCEQ’s conclusion that DRCP was the entity “responsible for the overall
operation of the facility” and therefore the correct permit applicant.
C.
Permit Contestants raised several other objections to substantive
elements of TCEQ’s decision, such as whether TCEQ properly conducted
its “antidegradation review” and whether the permit should impose
stricter limits on aluminum and boron. The district court affirmed
TCEQ’s decision on all these issues.
After holding DRCP was not the mine’s operator and thus the
incorrect permit applicant, the court of appeals decided it could not
reach the remaining issues and vacated the part of the district court’s
judgment addressing them. 628 S.W.3d at 512. The court of appeals
held that addressing the remaining issues would amount to rendition of
an advisory opinion. For this proposition, it cited only the general
prohibition on advisory opinions. See Valley Baptist Med. Ctr. v.
9 Maverick County makes a token effort in this Court to contest these
fact findings as unsupported by the record. It does not explain how the findings
are unsupported, however, instead merely asserting that the findings
overstate or misstate the record evidence. The burden is on Permit
Contestants to show that TCEQ’s findings are not supported by substantial
evidence. Charter Med.–Dall., Inc., 665 S.W.2d at 453. They have failed to
make that showing here.
18
Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (“Under article II, section 1 of
the Texas Constitution, courts have no jurisdiction to issue advisory
opinions.”).
TCEQ, joined by DRCP, argues that the court of appeals erred by
failing to address the remaining issues. They contend the court of
appeals had jurisdiction to reach these issues, and they ask this Court
to reach them even though the court of appeals did not. Although we
decline to reach the remaining issues, we hold that the court of appeals
did not lack jurisdiction to reach them and therefore could have done so.
The APA provides that a court reviewing an agency decision after
a contested case “may affirm the agency decision in whole or in part.”
TEX. GOV’T CODE § 2001.174(1). The district court exercised its
authority under this provision by affirming TCEQ’s decision in part.
Despite reversing on the improper-applicant issue, the district court
affirmed TCEQ’s decision as to the remaining issues. To the extent the
court of appeals suggested the district court erred by reaching the
remaining issues, we disagree. The APA plainly gave both the district
court and the court of appeals the authority to affirm in part, as the
district court did, even if other issues required partial reversal or
remand to the agency. The only remaining question is whether, as the
court of appeals suggested, a judicial ruling on the remaining issues
violated the constitutional prohibition on advisory opinions. It did not.
“The distinctive feature of an advisory opinion is that it decides
an abstract question of law without binding the parties.” Tex. Ass’n of
Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). We see
nothing “abstract” in the parties’ ongoing, vigorous dispute over TCEQ’s
19
scientific and environmental findings regarding this mine. The parties
are engaged in a lengthy, complicated, and very expensive
administrative process, of which judicial review is but a part—and of
which the parties’ scientific and environmental disputes are but a part.
Cases like this one frequently bounce back and forth between the agency
and the courts or between levels of the court system. It may turn out,
when the dust settles, that one element or another of a court’s decision
ended up being irrelevant to the ultimate outcome. That does not mean
the court lacked jurisdiction to decide that part of the case. Even
assuming the remaining issues were rendered superfluous by the court
of appeals’ resolution of the “operator” question, the possibility remained
that this Court would take a different view of the “operator” question,
as we have done. The dispute over the remaining issues therefore
remained live, and its resolution still impacted the parties’ rights—even
though the extent to which it did depended on how the case progressed
in the future. Resolving the remaining issues would not have amounted
to an advisory opinion by the court of appeals.10
10 See, e.g., In re Camp Lejeune, N.C. Water Contamination Litig., 2012
WL 12869566, at *2 (N.D. Ga. May 11, 2012) (“While the court understands
Plaintiffs’ concerns that the court is issuing an advisory opinion, it is not
unusual for a court to rule on alternative arguments and the parties have
briefed both arguments and provided oral argument to the court. Ruling on
both arguments would allow the Court of Appeals to consider them at the same
time rather than extending the litigation by returning to the district court and
back up to the Court of Appeals a second time.”); cf. Cincinnati Life Ins. Co. v.
Cates, 927 S.W.2d 623, 626 (Tex. 1996) (“We further conclude that the
appellate court may consider other grounds that the movant preserved for
review and trial court did not rule on in the interest of judicial economy.”).
20
The prudential practice of courts to decline to reach issues not
necessary to the disposition of a case should not be confused with the
constitutional prohibition on advisory opinions. There is overlap
between the two, of course. But particularly in a complex administrative
appeal, litigation would become unmanageable if it were the rule that
every issue not strictly necessary to each court’s disposition of the case
were beyond that court’s constitutional power to decide. The court of
appeals erred by vacating the district court’s judgment as to the
remaining issues. Both the district court and the court of appeals had
jurisdiction to address those issues. The court of appeals could have
reached them. Whether the court of appeals was obligated to reach them
is a separate issue, to which we now turn.
Petitioners argue the court of appeals was obliged to reach the
remaining issues. It observes that the APA allows courts of appeals to
“affirm the agency decision . . . in part.” TEX. GOV’T CODE § 2001.174(1).
Petitioners argue that “in part” carries with it the premise that the other
part of the judgment reverses the remaining parts of the agency’s
decision, suggesting that the entire decision has been reviewed. We do
not read Section 2001.174(1) to obligate courts of appeals to reach all
issues raised by the parties regardless of whether the issues are
necessary to dispose of the appeal. The provision uses “may” in an
apparent attempt to ensure courts have discretion to dispose of cases as
they see fit. If the Legislature sought to impose a requirement—
unknown elsewhere in the law—that courts of appeals reach
unnecessary issues, we would expect it to be much more clearly stated.
21
TCEQ further contends that the court of appeals was obligated by
Rule of Appellate Procedure 47.1 to reach the remaining issues. Rule
47.1 requires courts of appeals to “hand down a written opinion
that . . . addresses every issue raised and necessary to final disposition
of the appeal.” TCEQ argues that resolution of the remaining issues was
“necessary to final disposition of the appeal” because the improper-
applicant problem did not infect the entire proceeding. TCEQ suggests
the improper-applicant problem can be fixed on remand to the agency
without necessarily disturbing TCEQ’s findings on other matters,
although it does not clearly state how this would happen. Permit
Contestants disagree. They argue that, if the applicant is improper, the
entire process has been for naught and must be completely redone. If
that is true, as they argue, then it was not necessary for the court of
appeals to review TCEQ decisions that would need to be decided anew
in a second proceeding.
We need not resolve this dispute, which raises doubtful questions
of administrative procedure that would be better decided by this Court
on more complete briefing. One way or another, the court of appeals’
judgment will be reversed, and this case will be remanded to the court
of appeals for consideration of the remaining issues. Whether the court
of appeals was obligated by Rule 47.1 to address those issues in the past,
it appears it will be obligated to address them in the future—assuming
the parties maintain their current positions.
Finally, TCEQ and DRCP ask this Court to address the remaining
issues without the benefit of the court of appeals having done so. “When
presented with an issue the court of appeals could have but did not
22
decide, we may either remand the case or consider the issue ourselves.”
RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 124 (Tex. 2018) (citing
TEX. R. APP. P. 53.4). “[O]rdinarily a case will be remanded to the court
of appeals for further proceedings when we reverse the judgment of the
appeals court and the reversal necessitates consideration of issues
raised in but not addressed by that court.” State v. Ninety Thousand
Two Hundred Thirty-Five Dollars & No Cents in U.S. Currency
($90,235), 390 S.W.3d 289, 294 (Tex. 2013). We conclude that our review
of these issues, if it becomes necessary, would benefit from the court of
appeals having addressed them first. We will take the ordinary course
and remand the remaining issues for consideration by the court of
appeals.
IV.
The judgment of the court of appeals is reversed. The part of the
district court’s judgment vacated by the court of appeals is reinstated
without regard to the merits. The case is remanded to the court of
appeals for further proceedings consistent with this opinion.
James D. Blacklock
Justice
OPINION DELIVERED: February 11, 2022
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