Shrimpers and Fishermen v. TX Cmsn on Env Q

Case: 19-60558 Document: 00515510402 Page: 1 Date Filed: 07/31/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 19-60558
July 31, 2020
Lyle W. Cayce
Clerk
SHRIMPERS AND FISHERMEN OF THE RGV; VECINOS PARA EL
BIENESTAR DE LA COMUNIDAD COSTERA,
Petitioners,
v.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY;
JON NIERMANN, in his official capacity as Chairperson of the Texas
Commission on Environmental Quality,
Respondents.
Petition for Review of an Action of the
Texas Commission on Environmental Quality
Before HAYNES and OLDHAM, Circuit Judges, and HANEN, * District Judge.
PER CURIAM:
The Texas Commission on Environmental Quality (“TCEQ”) granted
certain air permits to Rio Grande LNG. Petitioners ask us to vacate TCEQ’s
decision and order either (1) a contested-case hearing before the Texas State
Office of Administrative Hearings (“SOAH”) or (2) the denial of the permits. It
is unclear what source of law authorizes Petitioners to seek direct review of
TCEQ’s decision in our court. But we need not address that question because
* District Judge of the Southern District of Texas, sitting by designation.
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we hold that Petitioners lack Article III standing. See Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 93–94 (1998). We dismiss the petition.
I.
A.
The Clean Air Act, 42 U.S.C. §§ 7401–7671q, combines federal and state
regulation to maintain and improve the nation’s air quality. At the federal
level, the Environmental Protection Agency (“EPA”) identifies pollutants that
endanger public health. Id. § 7408. It then establishes maximum permissible
concentrations of those air pollutants, known as the National Ambient Air
Quality Standards (“NAAQS”). Id. § 7409.
Though EPA establishes the NAAQS, the States have the primary
responsibility for implementing them. States must submit to EPA State
Implementation Plans specifying how they will attain and maintain the
NAAQS. Id. § 7407(a). Those plans must provide for New Source Review of the
construction and modification of certain stationary sources of air pollution. Id.
§ 7410(a)(2)(C). New “major” sources of air pollution—such as the one proposed
by Rio Grande LNG—must satisfy the requirements for Prevention of
Significant Deterioration of air quality. Id. § 7475(a).
In Texas, TCEQ is responsible for conducting New Source Review and
deciding whether to issue air-quality permits for proposed facilities. See TEX.
HEALTH & SAFETY CODE § 382.051. The Clean Air Act requires States to give
the public an opportunity to participate in permitting decisions through the
submission of written comments and presentation of oral statements at a
public hearing. 42 U.S.C. § 7475(a)(2). Texas exceeds these requirements by
giving TCEQ the discretion to hold contested-case hearings before SOAH. 1 See
“The State Office of Administrative Hearings is a state agency created to serve as an
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independent forum for the conduct of adjudicative hearings in the executive branch of state
government.” TEX. GOV’T CODE § 2003.021(a).
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TEX. HEALTH & SAFETY CODE § 382.056(n) (incorporating TEX. WATER CODE
§ 5.556). A contested-case hearing is a trial-like “proceeding . . . in which the
legal rights, duties, or privileges of a party are to be determined by a state
agency after an opportunity for adjudicative hearing.” TEX. GOV’T CODE
§ 2001.003(1). Contested-case hearings on permitting decisions are limited in
scope to “disputed question[s] of fact” that were “raised during the public
comment period” and are “relevant and material to the decision on the
application.” TEX. WATER CODE § 5.556(d). If TCEQ calls for a contested-case
hearing, a SOAH administrative law judge will conduct the hearing and
prepare a “proposal for decision to the commission.” TEX. GOV’T CODE
§ 2003.047(e). The final decision rests with TCEQ, which can adopt, reject, or
amend the proposal. Id. § 2003.047(l )–(m).
TCEQ “may not grant a request for a contested case hearing unless the
commission determines that the request was filed by an affected person as
defined by Section 5.115 [of the Texas Water Code].” TEX. WATER CODE
§ 5.556(c). An “affected person” is “a person who has a personal justiciable
interest related to a legal right, duty, privilege, power, or economic interest
affected by the administrative hearing.” Id. § 5.115(a). An “interest common to
members of the general public does not qualify as a personal justiciable
interest.” Ibid.
These criteria bear some resemblance to Article III’s familiar injury-in-
fact requirement. But there are also key differences. In 2015, the 84th Texas
Legislature passed and Governor Greg Abbott signed Senate Bill 709. That bill
added a provision to the Texas Water Code stating that TCEQ may consider
“the merits of the underlying application” and “the analysis and opinions of the
executive director” of TCEQ in determining whether someone is an affected
person. Id. § 5.115(a-1).
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Section 5.115(a-1) also states that TCEQ may not find that “a group or
association is an affected person unless the group or association identifies, by
name and physical address in a timely request for a contested case hearing, a
member of the group or association who would be an affected person in the
person’s own right.” Id. § 5.115(a-1)(2). And it instructs TCEQ to “adopt rules
specifying factors which must be considered in determining whether a person
is an affected person.” Id. § 5.115(a-1); see also 30 TEX. ADMIN. CODE § 55.203
(specifying factors).
Once TCEQ has made a final decision, the Texas Clean Air Act provides
that a “person affected by a ruling, order, decision, or other act of the
commission . . . may appeal the action by filing a petition in a district court of
Travis County.” TEX. HEALTH & SAFETY CODE § 382.032(a). “The petition must
be filed within 30 days” of the action from which the petitioner is appealing.
Id. § 382.032(b). Filing a timely petition “is a jurisdictional requirement,” and
“dismissal” is the “necessary consequence” of filing an untimely petition. AC
Interests, L.P. v. TCEQ, 543 S.W.3d 703, 709 (Tex. 2018). Neither the federal
Clean Air Act nor the Texas Clean Air Act says anything about filing a petition
for review of TCEQ’s decision in this court.
B.
The Petitioners in this case are two membership organizations:
Shrimpers and Fishermen of the RGV (“Shrimpers”) and Vecinos Para el
Bienestar de la Comunidad Costera (“Vecinos”). They oppose Rio Grande
LNG’s plans to construct a natural gas liquefaction facility, export terminal,
and pipeline near Brownsville, Texas. Petitioners submitted a comment to
TCEQ asking for a contested-case hearing on Rio Grande LNG’s application
for air-quality permits. In the alternative, they asked TCEQ to deny the
permits. TCEQ rejected both requests and granted Rio Grande LNG the
permits. Petitioners filed a motion for rehearing, which TCEQ denied.
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Petitioners filed a state-court lawsuit seeking vacatur of TCEQ’s decision
and either a contested-case hearing or a denial of the permits. Plaintiffs’
Original Petition, Shrimpers & Fishermen of the RGV v. TCEQ, No. D-1-GN-
19-001306, 2019 WL 1209098 (250th Dist. Ct., Travis County, Tex. Mar. 12,
2019). The state suit alleged that TCEQ erred in granting the permits and that
Petitioners were “affected persons” entitled to request a contested-case hearing
under Texas law.
While the state case was pending, Petitioners filed a petition for review
in our court. Like the state lawsuit, this suit alleges that TCEQ erred in
granting air-quality permits to Rio Grande LNG and that Petitioners were
“affected persons” entitled to request a contested-case hearing under Texas
law. Petitioners also asked us for the same relief they requested in state court.
Given the unusual posture of this case—a petition seeking direct review of a
state agency’s decision in the Fifth Circuit—we asked Petitioners to submit a
letter brief explaining what source of law provided them with a cause of action.
II.
We need not decide whether Petitioners have a cause of action because
they do not have standing. A petitioner who seeks judicial review of agency
action invokes federal jurisdiction and therefore “bears the burden of
establishing” Article III standing. Ctr. for Biological Diversity v. EPA, 937 F.3d
533, 536 (5th Cir. 2019) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992)). We agree with our sister circuits that in direct appellate review of a
final agency action, “the petitioner carries a burden of production” with respect
to standing that is “similar to that required at summary judgment.” Sierra
Club v. EPA, 793 F.3d 656, 662 (6th Cir. 2015); see also Ga. Republican Party
v. SEC, 888 F.3d 1198, 1201 (11th Cir. 2018); N. Laramie Range Alliance v.
FERC, 733 F.3d 1030, 1034 (10th Cir. 2013); Iowa League of Cities v. EPA, 711
F.3d 844, 869–70 (8th Cir. 2013); Citizens Against Ruining the Env’t v. EPA,
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535 F.3d 670, 675 (7th Cir. 2008); Sierra Club v. EPA, 292 F.3d 895, 899–901
(D.C. Cir. 2002). This means that a petitioner’s claim of standing cannot rest
on “mere allegations,” but must instead be supported by citations to specific
facts in the record. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 412 (2013)
(quoting Lujan, 504 U.S. at 561).
The familiar elements of standing are (1) an injury in fact, (2) that is
fairly traceable to the challenged conduct of the respondent, and (3) that is
likely to be redressed by a favorable judicial decision. See Ctr. for Biological
Diversity, 937 F.3d at 536. Because Petitioners are membership organizations,
they must make the additional showing of associational standing. To establish
associational standing, Petitioners must show that (1) their members would
independently have Article III standing to sue, (2) the interests they seek to
protect are germane to their purposes, and (3) neither the claim asserted nor
the relief requested requires the participation of individual members. See ibid.
We need only consider the first prong of both tests: We conclude Petitioners
have not satisfied their burden to show their members’ injuries in fact.
A.
To establish an injury in fact, Petitioners must show an “invasion of a
legally protected interest” that is both “concrete and particularized” and also
“actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robbins,
136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560). We do not
recognize the concept of “probabilistic standing” based on a non-particularized
“increased risk”—that is, an increased risk that equally affects the general
public. Suits alleging “generalized grievances” do “not present constitutional
‘cases’ or ‘controversies.’ ” Lexmark Int’l, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 127 n.3 (2014).
Moreover, even if a petitioner’s increased-risk harms are particularized,
they also must be actual or imminent. See Susan B. Anthony List v. Driehaus,
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573 U.S. 149, 158 (2014); Stringer v. Whitley, 942 F.3d 715, 721 (5th Cir. 2019).
The “actual or imminent” requirement is satisfied only by evidence of a
“certainly impending” harm or a “substantial risk” of harm. Clapper, 568 U.S.
at 414 & n.5; see also Sierra Club v. EPA, 754 F.3d 995, 1001 (D.C. Cir. 2014)
(quoting Nat. Res. Def. Council v. EPA, 464 F.3d 1, 6 (D.C. Cir. 2006)).
Increased-risk claims—even when they are particularized—often cannot
satisfy the “actual or imminent” requirement. As then-Judge Kavanaugh once
wrote for the D.C. Circuit, there is “a powerful argument that ‘increased-risk-
of-harm’ claims . . . fail to meet the constitutional requirement that a plaintiff
demonstrate harm that is ‘actual or imminent, not conjectural or
hypothetical.’ ” Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489
F.3d 1279, 1294 (D.C. Cir. 2007) (quoting Lujan, 504 U.S. at 560). “Much
government regulation slightly increases a citizen’s risk of injury—or
insufficiently decreases the risk compared to what some citizens might prefer.”
Id. at 1295. “Opening the courthouse to these kinds of increased-risk claims
would drain the ‘actual or imminent’ requirement of meaning,” “expand the
‘proper—and properly limited’—constitutional role of the Judicial Branch
beyond deciding actual cases or controversies,” and “entail the Judiciary
exercising some part of the Executive’s responsibility to take care that the law
be faithfully executed.” Ibid. (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 341 (2006)); see also Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152,
1161 (D.C. Cir. 2005) (Sentelle, J.).
In this case, Petitioners identify several members who they argue have
standing to challenge TCEQ’s grant of air-quality permits to Rio Grande LNG.
Lela Burnell (Shrimpers) lives within eighteen miles of the proposed facility
and works within five miles. Jamie Garcia (Shrimpers) lives a similar distance
from the proposed facility and fishes near it in the Brownsville Ship Channel.
Amber Thomas (Shrimpers) lives within eleven miles of the proposed facility
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and works within five miles. All three regularly drive by the proposed facility’s
location on State Highway 48. Erika Avila ( Vecinos) lives about five-and-a-half
miles from the proposed facility, drives to work on State Park Road 100 about
three miles from the proposed facility, and occasionally passes by the proposed
facility’s location on State Highway 48 when she visits Brownsville.
In their opening brief, Petitioners claim that “evidence in the record from
Rio Grande LNG’s and TCEQ’s modeling shows elevated risks of harm from
the facility’s air emissions at distances of more than 14 miles from the facility.”
Even if we charitably construe this argument as claiming that individuals
living, working, and driving within a roughly fourteen-mile radius of the
proposed facility (i.e., Petitioners’ members) will suffer an increased risk of
harm that those living further away will not suffer, these claims are too
generalized and Petitioners have not produced enough evidence to show an
actual or imminent harm.
Even if Petitioners’ members did identify specific risks, there is no
evidence of the extent to which those risks would be increased for those
members by the expected emissions. “Without actual evidence” from the
Petitioners, we will not “wade” into the “morass” of such empirical questions.
Crete Carrier Corp. v. EPA, 363 F.3d 490, 494 (D.C. Cir. 2004) (quoting
Common Cause v. U.S. Dep’t of Energy, 702 F.2d 245, 252 (D.C. Cir. 1983)). In
the procedural posture of this case—direct review of a final agency action—
Petitioners’ claims to standing fail because they rest on “mere allegations,”
rather than concrete evidence. Clapper, 568 U.S. at 412 (quoting Lujan, 504
U.S. at 561); see also Sierra Club, 292 F.3d at 901 (noting that mere allegations
“are not evidence”).
Petitioners also argue that the proposed facility would cause ozone levels
to be “very close to violating the federally mandated” NAAQS. Petitioners
again fail to identify what specific health risks their members expect to suffer.
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And there is again no evidence concerning the extent to which the expected
omissions would increase any such risks for Petitioners’ members. Because this
argument is also based on mere allegations rather than concrete evidence, it
too falls short. See Clapper, 568 U.S. at 412; Sierra Club, 292 F.3d at 901.
Petitioners present no other arguments that their members will suffer
imminent injuries from air pollution emitted by the proposed facility. They
have shown neither a certainly impending harm nor a substantial risk of harm.
As such, they have failed to establish Article III standing based on health risks
to their members. 2
B.
To the extent Petitioners argue that the denial of a contested-case
hearing is a procedural harm separate and distinct from the harms they expect
to be caused by the proposed facility, we reject that alleged injury as a basis
for standing. A petitioner can have standing to enforce procedural rights only
if “the procedures in question are designed to protect some threatened concrete
interest” that is “the ultimate basis of his standing.” Lujan, 504 U.S. at 573
n.8. Petitioners have failed to demonstrate a concrete interest that provides
them with standing. See supra Part II.A. Their assertion of “a procedural right
in vacuo” is therefore “insufficient to create Article III standing.” Summers v.
Earth Island Inst., 555 U.S. 488, 496 (2009); see also Ctr. for Biological
Diversity, 937 F.3d at 543.
2 Petitioners raise a few other arguments for standing that are developed in only a
cursory fashion. Their members claim that the proposed facility could harm wildlife, reduce
their customers, and experience accidents or explosions. These claims are “too speculative for
Article III purposes,” as they are not supported by any evidence. Lujan, 504 U.S. at 564 n.2;
see also Clapper, 568 U.S. at 414; Little v. KPMG LLP, 575 F.3d 533, 540–41 (5th Cir. 2009).
“Article III demands more than such conclusory assertions.” Ctr. for Biological Diversity, 937
F.3d at 545.
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* * *
Because we conclude that Petitioners lack Article III standing, we
decline to address the merits of their petition. The petition for review is
DISMISSED.
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ANDREW S. OLDHAM, Circuit Judge, concurring.
I agree with my esteemed colleagues that Petitioners have not
established standing. Article III jurisdiction is always first. In re Gee, 941 F.3d
153, 170–71 (5th Cir. 2019) (per curiam); see also Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94 (1998). Here, it’s also last.
I nonetheless write separately to make two points about Petitioners’
purported cause of action. First, what it is. And second, why it matters.
First, Petitioners say their cause of action comes from either the
Administrative Procedure Act, 5 U.S.C. §§ 701–706 (“APA”), or the Natural
Gas Act as amended by the Energy Policy Act of 2005, 15 U.S.C. § 717r(d)(1).
While TCEQ and Rio Grande LNG disagree with Petitioners on a lot of things,
they agree on this. All of the parties point to the APA and § 717r(d)(1).
The parties offer no reason to think the APA is relevant. True, it provides
a right of action to “[a] person suffering legal wrong because of agency action.”
5 U.S.C. § 702. But the APA defines an “agency” as an “authority of the
Government of the United States.” Id. § 701. TCEQ is an agency of the
sovereign State of Texas. So it’s unclear how the APA provides a right to
petition for review of TCEQ orders.
Petitioners fare no better under the Natural Gas Act. It provides in
relevant part:
The United States Court of Appeals for the circuit in which a
facility subject to section 717b of this title or section 717f of this
title is proposed to be constructed, expanded, or operated shall
have original and exclusive jurisdiction over any civil action for the
review of an order or action of a Federal agency (other than the
Commission) or State administrative agency acting pursuant to
Federal law to issue, condition, or deny any permit, license,
concurrence, or approval (hereinafter collectively referred to as
“permit”) required under Federal law, other than the Coastal Zone
Management Act of 1972 (16 U.S.C. 1451 et seq.).
15 U.S.C. § 717r(d)(1).
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Although this provision vests our Court with “original and exclusive
jurisdiction” to hear “any civil action” challenging certain TCEQ orders, it does
not create “any civil action.” It does not vest any person or class of persons with
a right of review. Cf. 5 U.S.C. § 702. It does not specify who can be sued as a
defendant. Cf. ibid. And it does not specify a standard of review. Cf. id. § 706.
It just says if you have a civil action, our court has exclusive jurisdiction over
it.
By way of comparison, consider the statute that gives us general federal-
question jurisdiction. It says: “The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties
of the United States.” 28 U.S.C. § 1331. Does that create “all civil actions
arising under the Constitution, laws, or treaties of the United States”? Of
course not: Section 1331 “does not create causes of action, but only confers
jurisdiction to adjudicate those arising from other sources which satisfy its
limiting provisions.” Montana-Dakota Utils. Co. v. Nw. Pub. Serv. Co., 341 U.S.
246, 249 (1951). Section 717r(d)(1) operates in precisely the same way. It
doesn’t create a cause of action. It merely provides us with jurisdiction to hear
whatever causes of action Petitioners might otherwise have.
So what is the source of Petitioners’ cause of action? It appears to be state
law. Their claims here are materially identical to the state-law claims they
previously brought in state court. See Plaintiffs’ Original Petition, Shrimpers
& Fishermen of the RGV v. TCEQ, No. D-1-GN-19-001306, 2019 WL 1209098(250th Dist. Ct., Travis County, Tex. Mar. 12, 2019).
If it’s true that Petitioners have only state-law claims, then that creates
more questions than it answers. You might reasonably wonder whether
Congress actually wrote a statute that gives us federal jurisdiction over state-
law claims brought by Texans against the State of Texas. See, e.g., Gunn v.
Minton, 568 U.S. 251, 256 (2013). You might also ask whether Article III allows
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us to hear such claims. See, e.g., U.S. CONST. art. III, § 2 (limiting the “judicial
Power” to inter alia “all Cases, in Law and Equity, arising under this
Constitution, the laws of the United States, and Treaties” and “to
Controversies . . . between Citizens of different States”).
Start with the statutory question. A long line of Supreme Court cases
addresses whether Congress wrote a particular jurisdictional statute in broad
enough terms to include state-law causes of action. Most of these cases concern
§ 1331 and linguistically similar statutes. See, e.g., Gunn, 568 U.S. at 257. And
in that context, the Supreme Court once had a simple rule: “A suit arises under
the law that creates the cause of action.” American Well Works Co. v. Layne &
Bowler Co., 241 U.S. 257, 260 (1916). That is, if federal law created the
plaintiff ’s cause of action, then the “action[ ] aris[es] under the Constitution,
laws, or treaties of the United States,” 28 U.S.C. § 1331, and Congress gave us
jurisdiction over it. Contrariwise, if state law created the cause of action, then
Congress did not give us jurisdiction over it in § 1331 (and linguistically similar
statutes).
Consider American Well Works. In that case, the plaintiff allegedly
owned a patent for a pump that it manufactured and sold. 241 U.S. at 258. The
plaintiff alleged that the defendants violated state law by falsely telling users
of the pump that they were infringing the defendants’ patent, frivolously suing
some of them for patent infringement, and threatening to file other frivolous
patent-infringement suits. Ibid. Sure, federal patent issues were “piece[s] of
evidence,” but that didn’t matter. The Supreme Court held that the suit arose
under state law because a “suit arises under the law that creates the cause of
action.” Id. at 260. It was not a federal question at all. End of story.
The Supreme Court has since complicated the statutory question. In
post-1916 cases, the Court has recognized a “slim,” “special[,] and small”
category of cases that originate under state law and still trigger federal-
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question jurisdiction. Gunn, 568 U.S. at 258 (quotation omitted). To determine
if a state-law claim falls in that narrow category, the Court asks whether it:
“[1] necessarily raise[s] a stated federal issue, [2] actually disputed and
[3] substantial, [4] which a federal forum may entertain without disturbing
any congressionally approved balance of federal and state judicial
responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545
U.S. 308, 314 (2005). It’s difficult to predict what result this four-factor
balancing test would yield in any particular case. See id. at 321 (Thomas, J.,
concurring) (noting the test “is anything but clear”). But the important point is
that you cannot simply assume that Congress gave us jurisdiction to consider
a purely state-law dispute between in-state parties.
But even if you did assume it, you’d run headlong into a constitutional
question. Here’s why. Assume § 717r(d)(1) plainly gives us statutory
jurisdiction over purely state-law disputes for contested-case hearings. Then
we’d have to consider whether such a capacious statute is consistent with
Article III. Compare Shoshone Mining Co. v. Rutter, 177 U.S. 505, 513 (1900)
(“[T]he mere fact that a suit is an adverse suit authorized by the statutes of
Congress is not in and of itself sufficient to vest jurisdiction in the Federal
courts.”), with Grable, 545 U.S. at 317 n.5 (describing Shoshone as an
“extremely rare” case). As with the four-factor Grable question, this one is
difficult. Cf. RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER’S THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 805 (7th ed. 2015) (arguing that
the Clean Air Act’s citizen-suit provision, which provides a federal cause of
action to challenge state implementation plans, “push[es] against the limits of
Article III”). And as with the statutory question, we cannot simply assume the
answer to it.
Second, why this matters. It doesn’t in one sense. In Steel Co., the
Supreme Court held that the existence of a cause of action is a “merits
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question” that cannot be decided before resolving the preliminary question of
Article III jurisdiction. 523 U.S. at 93–94. Because we lack jurisdiction, the
merit (or demerit) of the cause-of-action question doesn’t really matter.
But it does matter in another sense. These are sophisticated and well-
counseled parties. And TCEQ in particular has a wealth of institutional
knowledge about precisely where it can be sued, for what, and by whom. But
no one involved in this case—including TCEQ—heard even the softest alarm
bell when Petitioners brought their state-law cause of action for a contested-
case hearing in federal court. Even after we asked for supplemental briefing
on it. And even after it came up at oral argument. Petitioners, TCEQ, and Rio
Grande LNG never questioned our power to adjudicate that state-law claim
and to order a state agency to comply with state procedures for contested-case
hearings. Cf. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).
It is our duty to ask these questions every time a party invokes the
judicial power of the United States. Because even when all parties really want
us to exercise that power, we have an enduring obligation to remember what
federal courts do—and perhaps more importantly what we don’t.
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