the City of Port Isabel, Texas, JJ Zamora, and Martin Cantu v. Brownsville Navigation District of Cameron County, Texas ( 2022 )

NUMBER 13-20-00479-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
THE CITY OF PORT ISABEL,
TEXAS, JJ ZAMORA, AND
MARTIN CANTU, Appellants,
v.
BROWNSVILLE NAVIGATION
DISTRICT OF CAMERON
COUNTY, TEXAS, Appellee.
On appeal from the 445th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Silva
Memorandum Opinion by Justice Silva
Appellants the City of Port Isabel, Texas (Port Isabel), JJ Zamora, and Martin
Cantu 1 appeal the trial court’s order sustaining appellee Brownsville Navigation District
of Cameron County, Texas’s (BND’s) plea to the jurisdiction. By what we construe as
three issues, appellants argue that: (1) the trial court erred by granting BND’s plea to the
jurisdiction because BND’s immunity has been waived; (2) the trial court erred by
concluding that appellants’ suit was a collateral attack on the Federal Energy Regulatory
Commission’s (FERC) approval of BND’s plans over which the trial court lacked
jurisdiction; and (3) even if dismissal was appropriate, dismissal with prejudice was not.
We affirm.
I. BACKGROUND
BND entered into lease agreements with several businesses that would construct
and operate liquid natural gas (LNG) facilities on its property. 2 The parcels of land on
which the facilities would be built are approximately one mile from Port Isabel. According
to exhibits filed with the trial court by appellants, the plans to site and build the facilities
began as early as March 2016 when one of the companies submitted its formal application
to FERC to site and build the facility. After several years of environmental studies by
FERC and the Texas Commission on Environmental Quality (TCEQ), FERC issued the
final environmental impact statement in March 2019. On November 22, 2019, FERC
approved the site plans for the LNG facilities, making the leases enforceable.
1 Zamora and Cantu are both residents of Port Isabel. Zamora is the mayor of Port Isabel while
Cantu is a city councilmember.
2 The exact dates that the parties entered the leases are unknown; however, Port Isabel asserts
that the leases were contingent on FERC’s approval of the LNG plans.
2
On February 5, 2020, appellants filed their second amended petition and
application for preliminary and permanent injunctions, asking the trial court to prohibit
“BND from allowing any construction and operation of [LNG] facilities upon its premises.”3
BND received service and filed a notice of removal to the United States District Court for
the Southern District of Texas on February 7, 2020. The federal court remanded the suit
back to the state court on May 4, 2020, concluding that it did not have jurisdiction over
appellants claims because the claims were based on state law. BND subsequently filed
its plea to the jurisdiction and a later accompanying brief in support of its plea. Appellants
filed their third amended petition and application for preliminary and permanent
injunctions on May 19, 2020.
Appellants’ third amended petition alleged that the LNG facilities “shall have a
detrimental and negative impact upon the environment, including air, soil[,] and water
quality for the inhabitants of the City of Port Isabel and the wildlife located in and around
the Laguna Atascosa Wild[life] Refuge.” Appellants further alleged that
BND knew that the construction and subsequent operation of the [LNG]
facilities by the various [LNG] businesses to whom [BND] leased its
premises, would cause pollution and detrimentally impact the air, soil, water,
inhabitants[,] and wildlife in and around the city limits of Port Isabel, Texas.
[BND] knew or knows that the operation of the [LNG] facilities upon its
premises would cause injury and damages to the air, soil, water,
inhabitants[,] and wildlife in and around the city limits of Port Isabel, Texas.
Despite this knowledge about the severe detrimental impact that the
operation of the [LNG] facilities upon its premises would cause, [BND]
continued to, and still continues, to allow its premises to be used in a
manner which shall cause irreparable harm to the air, soil, water,
inhabitants[,] and wildlife in and around the city limits of Port Isabel, Texas.
3Appellants filed their original petition and application for preliminary and permanent injunctions
on January 27, 2020, and first amended petition and application for preliminary and permanent injunctions
on January 30, 2020; however, appellants did not serve BND with either version.
3
Alternatively, [BND] has intentionally acted to cause harm to the air, soil,
water, inhabitants[,] and wildlife in and around the city limits of Port Isabel,
Texas by proce[e]ding with its lease to the [LNG] businesses for the purpose
of [LNG] operations upon [BND]’s premises. [BND] has intentionally acted
to cause harm to the air, soil, water, inhabitants[,] and wildlife in and around
the city limits of Port Isabel, Texas because it has actual knowledge of the
pollution and environmental devastation that shall occur when the [LNG]
businesses conduct their respective liquified natural gas operations upon
BND’s premises.
According to appellants,
[o]nce Texans and others discover that the chemicals from the [LNG]
facilities like benzene, formaldehyde[,] and mercury are in the air, water,
fish[,] and soil, they will avoid Port Isabel and seek out other places to fish,
visit, vacation, shop, eat[,] and work. The [LNG] facilities’ operations will
devastate the Port Isabel economy.
BND[,] through its leases with the liquified natural gas businesses[,]
has created a condition that is subversive of public health, and that
constitutes an obstruction of public rights.
Appellants attached and incorporated by reference testimony from their expert,
David Weeks, a licensed engineer who is board certified in hazardous waste
management and industrial hygiene. According to Weeks,
[a]ir contaminants emitted from the [f]acility will be deposited into the
Laguna Atascosa National Wildlife Refuge [(Refuge)] and other areas within
the corporate and [extra-jurisdictional] boundaries of [Port
Isabel]. . . . Heavy metals and semi-volatile organic compounds . . . may be
present as or attach to particulate matter . . . . Once deposited into the
environment[,] the air contaminants can be taken up into the food chain
where they can cause toxic responses in higher trophic levels of the food
web (i.e.[,] mammals and birds), or have direct adverse effects on the
ecosystem itself (invertebrates).
For example, the facility may emit cadmium, mercury, and polycyclic
aromatic hydrocarbons (PAHs). . . . Some fraction of these air contaminants
will likely be deposited in the environment in a pattern similar to that shown
4
in Exhibit 34[ 4] because they may be present as or attached to fine particles
from the combustion process.
....
The analysis showed that the [a]pplicant’s emissions could result in
nitrogen and sulfur deposition to the environment that exceed the
[Deposition Analysis Threshold] based air concentrations for nitrogen and
sulfur, and therefore the applicant’s emissions could result in the deposition
of nitrogen and sulfur that could cause adverse impacts to the environment
of the [Refuge] and the areas of [Port Isabel] . . . .
....
[I]t is not known if the permit conditions are protective of human
health for cancer risk.
Weeks expressed repeated concerns that the environmental and health studies
performed as part of the permitting process did not consider all the necessary information
to make an adequate conclusion on safety to both human and environmental entities near
the plants.
Appellants asserted multiple causes of action including gross negligence and
nuisance. 5 Appellants argued that BND’s actions constituted gross negligence because
“allowing [LNG] operations upon its premises[,] when viewed objectively from BND’s
standpoint, involves an extreme degree of risk to the air, water, soil, inhabita[n]ts[,] and
wildlife in and around the city limits of Port Isabel.” Appellants went on to allege that “BND
had actual, subjective awareness of the risks involved, but nevertheless proceeded in
conscious indifference to the rights, safety, or welfare of [appellants] and others.”
4 Exhibit 34 does not appear in the record.
5 Appellants listed three separate nuisance actions: (1) public and private nuisance; (2) “intentional
nuisance” with strict liability for ultrahazardous activity; and (3) nuisance that amounts to a taking of
appellants’ property.
5
According to appellants, BND’s conduct of leasing the land to the LNG businesses “is the
proximate cause of [appellants’] injuries and damages.”
Appellants alleged that strict liability applies to BND’s conduct because “the
construction and operation of the [LNG] facilities upon BND’s premises [are] an
abnormally dangerous activit[ies]” in that the facilities will emit “noxious and toxic
chemicals” and, in the event of a fire, LNG burns at approximately 3,500 degrees
Fahrenheit and is extremely difficult, if not impossible, to extinguish.
Finally, appellants argued that “the construction and operation of the [LNG]
facilities upon BND’s premises . . . constitutes a forthcoming and imminent taking of
[appellants’] real property in violation of . . . the Texas Constitution.” According to
appellants, “BND intentionally acted and entered into the lease of its premises to the
various [LNG] businesses when BND knew or should have known that the operation of
the [LNG] facilities will result in the contamination of [appellants’] air, water, and soil with
emissions and chemicals harmful to [appellants].” In the alternative, appellants alleged
that BND’s act of leasing its property to the LNG companies constituted a proprietary act
for which BND does not enjoy governmental immunity.
BND filed a plea to the jurisdiction and included five exhibits. The first three exhibits
consisted of FERC’s order granting authorization to site, construct, and operate LNG
facilities for each proposed lease. BND also included appellants’ petition for review of
FERC’s authorizations before the United States Court of Appeals for the District of
Columbia Circuit. Finally, BND included an affidavit from Eduardo Campirano, port
director and chief executive officer at the Port of Brownsville.
6
In its plea, BND argued that, pursuant to the Natural Gas Act (NGA), FERC has
exclusive authority to approve or deny an application for the siting, construction, and
operation of an LNG facility. See 15 U.S.C. § 717b(e)(1). BND pointed out that several
interested parties, including appellants, were provided an opportunity to oppose the
approval of the forthcoming facilities by providing evidence and argument to FERC as to
why the facilities should not be constructed. BND argued that appellants’ state court suit
constituted an impermissible collateral attack on FERC’s authority, particularly because
none of the entities had begun construction of the facilities and thus appellants have
suffered no injuries.
BND also argued that, as a political subdivision of the State of Texas, it enjoyed
governmental immunity, which had not been waived. BND further asserted that the
decision to lease the property to the LNG businesses constituted a discretionary act for
which there is no waiver of governmental immunity, additionally arguing that there is no
waiver under the Texas Tort Claims Act (TTCA). In response to appellants’ assertion that
leasing the land to the LNG businesses was a proprietary function, BND argued that a
navigation district is “entirely governmental in function,” not proprietary.
According to BND, appellants’ suit affirmatively negated jurisdiction “because the
pleadings admit that (i) [BND] is merely the landlord, (ii) the LNG [facilities] have not been
constructed, much less become operational, and (iii) no damages to [appellants] have
actually resulted from any conduct of [BND].”
Appellants responded to BND’s plea, attaching thirteen exhibits to their response.
Appellants argued that a license or permit from a governmental entity does not provide a
7
shield from liability for injuries that arise from activities under that license or permit.
Appellants claimed they were “not attacking the propriety of the FERC and TCEQ’s orders
at all.” Rather, they were “asserting common law claims against [BND] to enjoin the
pollution, injuries[,] and damages that will befall [appellants] arising and emanating from
BND’s premises given the lease agreements.” In response to BND’s point that appellants
have not yet suffered damages, appellants argued that the relief sought is appropriate
regarding the timing because the injuries they will suffer are imminent. Appellants urged
the trial court to deny BND’s plea because, taking all assertions in their petition as true,
they sufficiently set out the necessary elements for each of their claims as well as
established a waiver of BND’s governmental immunity.
After a non-evidentiary hearing, the trial court granted BND’s plea, concluding that
“FERC has exclusive jurisdiction and authority to approve or not approve LNG siting,
construction[,] and operations facilities to the exclusion of state and local authorities,
including state courts.” The trial court determined that granting appellants’ requests for
preliminary and permanent injunctions “would effectively set aside the FERC [o]rders.”
The trial court added that appellants’ “pleadings and exhibits, as well as the
representation of facts made at the hearing, clearly and undeniably show that no harm or
injury has yet been done to any of the [appellants], to any person or animal or plant, or to
the land or the environment.” Finally, the trial court concluded that appellants “failed to
meet their burden that BND’s immunity from suit has been waived.” The trial court
dismissed appellants’ suit with prejudice. This appeal followed. 6
6 After this case was submitted for decision, this Court abated the case and asked the parties to
8
II. STANDARDS OF REVIEW
A. Exclusive Federal Jurisdiction
When Congress establishes exclusive federal jurisdiction, “only the specified
federal instrumentalities have jurisdiction of the matter, irrespective of the law to be
applied.” Mills v. Warner Lambert Co., 157 S.W.3d 424, 427 (Tex. 2005) (per curiam)
(quoting Chappell v. SCA Servs., Inc., 540 F. Supp. 1087, 1095 (C.D. Ill. 1982)
(contrasting exclusive jurisdiction with preemption, under which “federal substantive law
supplants state law but absent other provisions both state and federal courts have
concurrent jurisdiction of actions arising under that law.”). “[W]hether an agency has
exclusive jurisdiction is a question of law we review de novo.” Subaru of Am., Inc. v. David
McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex. 2002). Similarly, whether federal courts
have exclusive jurisdiction is a question of law which we review de novo. Stiles v. Mem’l
Hermann Healthcare Sys., 213 S.W.3d 521, 525 (Tex. App.—Houston [1st. Dist.] 2007,
pet. denied).
provide an update regarding the federal appeal and to provide us with a copy of the order and opinion. The
parties complied and we further requested that the parties brief this Court on whether the circuit court’s
ruling implicated mootness, which would deprive this court of subject matter jurisdiction. See Ward v. Lamar
Univ., 484 S.W.3d 440, 450–51 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“[A]ppellate courts have a
duty to assess their own jurisdiction sua sponte.”); see also City of Dallas v. Woodfield, 305 S.W.3d 412,
416 (Tex. App.—Dallas 2010, no pet.) (“An appellate court is prohibited from deciding a moot controversy.”).
The federal court of appeals granted appellants’ petitions for review as to whether FERC’s
“analyses of the projects’ impacts on climate change and environmental justice communities were deficient”
under the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA). Vecinos
para el Bienestar de la Comunidad Costera v. Fed. Energy Reg. Comm’n, 6 F.4th 1321, 1331 (D.C. Cir.
2021). However, the court declined to vacate FERC’s orders, reasoning that FERC “is likely to remedy any
deficiencies in its orders on remand” and that “vacating the orders would needlessly disrupt completion of
the projects.” Id. at 1332. In their supplemental briefing, the parties agree that, because the D.C. Circuit
Court of Appeals did not vacate the permits to site, construct, and operate the LNG facilities, this appeal is
not moot. We agree.
9
B. Ripeness
“Ripeness” is a doctrine that considers “whether, at the time a lawsuit is filed, the
facts have developed sufficiently such ‘that an injury has occurred or is likely to occur,
rather than being contingent or remote.’” Tex. Bd. of Chiropractic Exam’rs v. Tex. Med.
Ass’n, 270 S.W.3d 777, 781 (Tex. App.—Austin 2008, no pet.) (quoting Patterson v.
Planned Parenthood of Hous. & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998)).
“Ripeness is an element of subject matter jurisdiction.” Mayhew v. Town of Sunnyvale,
964 S.W.2d 922, 928 (Tex. 1998). “[R]ipeness derives from the constitutional prohibition
against advisory opinions, which in turn stems from separation-of-powers princip[l]es.”
Tex. Bd. of Chiropractic Exam’rs, 270 S.W.3d at 781. In other words, courts lack subject
matter jurisdiction over claims that are not yet ripe. Mayhew, 964 S.W.2d at 928. “A case
is not ripe when its resolution depends upon contingent or hypothetical facts, or upon
events that have not yet come to pass.” Tex. Bd. of Chiropractic Exam’rs, 270 S.W.3d at
781. Because ripeness is a component of subject matter jurisdiction, whether a claim is
ripe “is a legal question subject to de novo review that a court can raise sua sponte.”
Mayhew, 964 S.W.2d at 928.
III. APPLICABLE LAW
The NGA “creates a consolidated regulatory process for approving LNG facilities
that maintains the role of federal agencies and, in circumscribed areas, state agencies.”
Weaver’s Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 589 F.3d 458, 462 (1st
Circ. 2009); see 15 U.S.C. §§ 717–717z. The NGA provides FERC with “exclusive
authority to approve or deny an application for the siting, construction, expansion, or
10
operation of an LNG terminal.” 15 U.S.C. § 717b(e)(1). Thereafter, an interested party
may seek review of the permit through administrative procedures within FERC. Id.
§ 717r(a). Once FERC has concluded the review hearing, the aggrieved party may seek
review before the D.C. Circuit Court of Appeals or the court of appeals for the circuit in
which the LNG facility is located, which have exclusive jurisdiction to affirm, modify, or set
aside FERC’s order in whole or part. Id. § 717r(b).
FERC and the respective circuit courts’ exclusive jurisdiction does not extend to
state common law claims that arise out of the operation of LNG facilities. Pan Am.
Petroleum Corp. v. Superior Ct. of Del. In & For New Castle Cnty., 366 U.S. 656, 664–66
(1961) (holding the NGA does not eliminate a state court’s jurisdiction for common-law
contract claims); see also Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U.S.
374, 393 (2016) (holding Securities Exchange Act did not eliminate a state court’s
jurisdiction where “[plaintiff’s] claims sought relief under state law[,] and none necessarily
raised a federal issue”). “Exclusive means exclusive, and the [NGA] nowhere permits an
aggrieved party otherwise to pursue collateral review of a FERC certificate in state court
or federal district court.” Am. Energy Corp. v. Rockies Express Pipeline LLC, 622 F.3d
602, 605 (6th Circ. 2010).
IV. ANALYSIS
A. Exclusive Jurisdiction
Among their issues presented, appellants argue that the trial court erred by
granting BND’s plea to the jurisdiction because the NGA does not bar state law claims
11
against BND. Because we find this issue to be dispositive, we address it first. See TEX.
R. APP. P. 47.4.
Appellants cite FPL Farming Ltd. v. Environmental Processing Systems, L.C.,
arguing that the TCEQ and FERC permits do not shield BND from tort liability for injuries
caused while operating under those licenses. 7 351 S.W.3d 306, 310 (Tex. 2011) (“As a
general rule, a permit granted by an agency does not act to immunize the permit holder
from civil tort liability from private parties for actions arising out of the use of the permit.”).
In FPL Farming, the court concluded that FPL Farming could maintain a suit for trespass
against Environmental Processing Systems (EPS), despite EPS’s permit allowing it to
construct and operate two deep wastewater injection wells next to FPL Farming’s
property. Id. at 308. FPL Farming alleged that EPS’s operations caused wastewater to
migrate onto FPL Farming’s property, contaminating its water supply. Id. at 307. The court
explained that a permit is a “negative pronouncement” that removes government-imposed
barriers to a particular activity rather than granting affirmative rights. Id. at 310–11. Thus,
EPS’s permit merely allowed the activity but did not shield it from liability for damages
caused by the activity. Id. at 310, 314.
Appellants additionally argue that “[t]he only way the trial court could be correct,
that the federal regulatory scheme or FERC’s orders bar [appellants’] claims via exclusive
jurisdiction, is if there existed federal preemption of [appellants’] claims in this action.”
7 We note that FERC’s orders granting authorization to site, construct, and operate LNG facilities
were not granted to BND, but rather to the various companies that would be constructing and operating the
LNG facilities. Further, there is no allegation or evidence that BND intended to build or operate an LNG
facility itself.
12
Appellants cite Pan American Petroleum Corp. as support for their assertion that FERC
and the federal appellate courts do not have exclusive jurisdiction over state law claims.
See 366 U.S. at 664–66. In Pan American, the United States Supreme Court held that
FERC and the federal courts’ exclusive jurisdiction under the NGA did not deprive state
courts of subject matter jurisdiction over a natural gas pipeline company’s state-law
contract claim against Pan American. Id. at 662–63.
We find both Pan American and FPL Farming to be inapposite. In the present case,
appellants do not seek to recover damages, but to enjoin BND temporarily and
permanently from leasing its property to the LNG businesses and to prevent the “siting,
construction, expansion, or operation of an LNG terminal,” a matter exclusively reserved
for FERC and federal circuit courts. See 15 U.S.C. § 717b(e)(1).
In Pan American, the Court held that whether exclusive jurisdiction exists
“depend[s] on the particular claims a suitor makes in a state court—on how he casts his
action.” 366 U.S. at 662. Although the NGA does not strip state courts of subject matter
jurisdiction over common law state claims, a plaintiff may not simply assert state law
claims to act as a collateral attack on FERC’s statutory authority. See Williams Nat. Gas
Co. v. City of Oklahoma City, 890 F.2d 255, 262 (10th Cir. 1989) (“[T]he prohibition on
collateral attacks applies whether the collateral action is brought in state court.”). Here,
although appellants have alleged various causes of action based in common law tort, they
exclusively seek to undo the authority granted by FERC. See id. In other words,
appellants attempt to use artful pleading to utilize state court jurisdiction to usurp FERC’s
exclusive authority. See Williams Nat. Gas, 890 F.2d at 262.
13
Appellants’ claims amount to an impermissible collateral attack on FERC’s
exclusive authority to approve or deny an application to site, construct, expand, or operate
an LNG facility. See id. Appellants’ claims may be artfully pleaded as state law claims,
but they seek to defeat the very authority provided to FERC and the respective courts by
requesting temporary and permanent injunctions prohibiting the LNG facilities from being
sited, built, and operated by the lessees. See id.; Pan Am. Petroleum Corp., 366 U.S. at
662. Further, appellants’ claims that the operation of LNG facilities will lead to widespread
damage to Port Isabel, the surrounding area, and its inhabitants, were presented to and
considered by FERC during the permit application process and reviewed by the D.C.
Circuit Court of Appeals. See Williams Nat. Gas, 890 F.2d at 264. The collateral nature
of appellants’ attack is further evidenced by their pleadings, which suggest that
incomplete or insufficient environmental studies by FERC and TCEQ, led to erroneous
approval. See id.Lastly, appellants assert that the Southern District of Texas’s holding that “[t]he
NGA does not preempt state common law claims” further demonstrates appellants’
position that the trial court erred by concluding that it lacked jurisdiction. However, this
case does not implicate preemption; rather, it implicates exclusive jurisdiction. See Mills,
157 S.W.3d at 427. Further, “subject matter jurisdiction cannot be conferred by a prior
decision in the case.” Entergy Corp. v. Jenkins, 469 S.W.3d 330, 337 (Tex. App.—
Houston [1st Dist.] 2015, pet. denied) (concluding that the “law of the case doctrine”
cannot confer subject matter jurisdiction and does not limit a court’s obligation to ascertain
its own subject matter jurisdiction).
14
A plaintiff cannot use artful pleading to circumvent exclusive jurisdiction and
engage in a collateral attack on a federal agency’s expressed authority. See Williams Nat.
Gas, 890 F.2d at 262; Yamada v. Friend, 335 S.W.3d 192, 196–97 (Tex. 2010)
(reaffirming principal that artful pleading does not alter the underlying nature of a claim
being made as it relates to healthcare liability claims). Accordingly, we conclude the trial
court did not err in granting BND’s plea to the jurisdiction.
B. Dismissal with Prejudice
Appellants argue that the trial court erred by dismissing their claims with prejudice
because “[Port Isabel] would be forever foreclosed [of] the opportunity to bring suit against
BND for its later wrongful acts and/or omissions.” Appellants further assert that they
should be provided an opportunity to amend their pleadings to include sufficient facts to
cure any jurisdictional defects. However, the right to amend pleadings only exists when
the jurisdictional defect can be cured through pleadings. See Harris County v. Sykes, 136
S.W.3d 635, 639 (Tex. 2004) (“In general, a dismissal with prejudice is improper when
the plaintiff is capable of remedying the jurisdictional defect.”); Tex. Dep’t of Transp. v.
Ramirez, 74 S.W.3d 864, 867–68 (Tex. 2002) (concluding plaintiff did not have right to
amend pleadings where “[t]he pleaded facts and the evidence . . . demonstrate that it is
impossible for [the plaintiff] to amend the pleadings to invoke jurisdiction”). Here, the
jurisdictional defect—exclusive federal jurisdiction—cannot be cured through amended
pleadings. See Ramirez, 864 S.W.3d at 867–68. As such, the trial court did not err when
it dismissed appellants’ suit with prejudice. 8
8 While we are dismissing appellants’ claims pertaining to the yet built LNG facilities with prejudice,
15
C. Summary
The trial court did not err when it concluded that appellants’ suit amounted to an
impermissible collateral attack on FERC’s exclusive jurisdiction and dismissed their
claims with prejudice. Because we uphold the trial court’s order under exclusive
jurisdiction, we do not need to consider appellants’ remaining issues that BND waived
immunity or that the trial court failed to take as true all evidence favorable to appellants
and indulge every reasonable inference in their favor. See TEX. R. APP. P. 47.4.
V. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Delivered and filed on the
29th day of November, 2022.
our disposition should not be construed as extending to possible future claims that could arise following the
facilities’ construction.
16