Shrimpers and Fishermen of the RGV v. Texas Commission on Environmental Quality, No. 19-60558 (5th Cir. July 31, 2020) (per curiam) (Haynes, Oldham, Hanen) (Oldham, J., concurring)

First off, I need to thank Bear Reeves-Vasquez for his help with this post.

The Texas Commission on Environmental Quality is the state agency responsible for implementing federal air quality standards under the CAA in Texas. One of its jobs is deciding whether to issue air-quality permits to new sources of air pollution, and this case involves a challenge to its decision granting such a permit.

Petitioners are two membership organizations that oppose Rio Grande LNG’s plans to construct a natural gas liquefaction facility, export terminal, and pipeline near Brownsville, Texas. When TCEQ granted the permits anyway, they filed a state-court lawsuit seeking vacatur of TCEQ’s decision and either a contested-case hearing or a denial of the permits.

While their state case was pending, Petitioners decided to bring a separate petition, raising the same exact claims and seeking the same exact relief in the Fifth Circuit. That's when Petitioners ran into a small problem: Their case was assigned to a panel consisting of Judges Haynes, Oldham, and U.S. District Court Judge Hanen (sitting by designation). Why was that a problem? Let me put it this way, sending the claims of a couple of membership organizations who just rolled up in the Fifth Circuit seeking direct review of a state agency's permitting decisions under the CAA over to the chambers of any panel of Fifth Circuit judges, but especially one that includes the Honorable Andy Oldham, is the Article III equivalent of this:

via GIPHY

or this:

via GIPHY

or this:

via GIPHY

So, how did the panel react? Well, they dismissed the case for lack of standing. The opinion is a published per curiam, so it doesn't tell us who the author or authors were, but the number of citations to Judge Oldham's recent opinion in Center for Biological Diversity v. EPA, 937 F.3d 533, 536 (5th Cir. 2019), which I covered here, and to Judge David B. Sentelle leave little doubt in mind regarding who wrote it. I hasten to add that I have no inside information here, just an educated guess (but I bet I'm right).

Judge Oldham proceeded to write a separate concurring opinion to explain in detail why he strongly doubts Petitioners' claimed cause of action exists at all. The opinion is entertaining, and I recommend reading it in full. But I thought this was the most memorable passage:

Shrimpers and Fisherman of the RGV v. TCEQ, No. 19-60558 (5th Cir. July 31, 2020)
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