Free Speech, Due Process and Trial by Jury
Justices determined that two adjacent chicken farms were a nuisance but said less-drastic remedies to abate the odors are warranted. Agricultural interests are closely following the appeal, which attracted prominent lawyers for Sanderson Farms and its growers.
On Thursday, Justice Sonya Sotomayor delivered the 8-0 opinion of the court that held Truck Insurance Exchange should have been allowed to voice its concerns about the terms of a proposed $50 million settlement of thousands of asbestos-related lawsuits because the insurer is a “party in interest” in the dispute. Gibson Dunn's Allyson Ho argued the case and spoke to The Lawbook about its implications.
The Texas Supreme Court rejected the state transportation department’s claim that it thought the large oaks and elms were in its right of way when it directed a contractor to have them cut down. Such a ruling would “eviscerate our constitutional bulwark against uncompensated takings,” the court said.
The U.S. Supreme Court on Tuesday unanimously revived the lawsuit that the U.S. Fifth Court of Appeals had dismissed with a one-paragraph ruling. Daniel Charest of Burns Charest, who is the lead trial attorney for the landowners, was confident about the outcome of the case when he was present for oral arguments in January and heard what he viewed as an important admission from Texas Solicitor General Aaron L. Nielson, who was arguing for the state.
In a decision filed Thursday, the U.S. Fifth Circuit upheld the federal permitting for the Sea Port Oil Terminal project, a massive crude pipeline network and storage facility to be located off the Texas coast. The appeals court refused a demand by environmental groups that the U.S. Maritime Administration revisit the environmental impact of the project for its potential harm to the ecological balance in the Gulf of Mexico and the possible extinction of the endangered Rice's whale.
Just east of Austin, Martin Marietta Materials and TXI Operations operate a sand and gravel mine on the banks of the Colorado River. Their neighbor across the river, on the northern bank, is Good River Farms, a 377-acre pecan farm containing about 8,000 trees that has been owned and operated by the Wimberly family since 1959. This lawsuit was spawned from a major rain event — described as a 120-year flood — that hit the area on Oct. 30, 2015.
The Texas Fourteenth Court of Appeals in Houston ruled Tuesday that 20,000 plaintiffs in wrongful death, personal injury and other Winter Storm Uri-related lawsuits seeking billions of dollars in damages from Texas electric transmission and distribution utilities may move forward to trial. The three-judge panel unanimously ruled that trial judge Sylvia Matthews was correct in allowing allegations of gross negligence and intentional misconduct to proceed against the TDUs, which include CenterPoint Energy, Oncor Electric Delivery and American Electric Power, but that charges of common-law negligence and strict-liability nuisance are prohibited by state law. Legal experts say the Fourteenth Court’s opinion is a partial win for both sides.
The justices had consolidated the oral arguments in two cases that involve disputes in Mills and Wilbarger counties. The cases are part of a large group of lawsuits filed by Oncor to fight the valuation of its transmission lines in 13 counties. The utility company argues incorrect data provided by a private appraisal firm to determine 2019 values led to a $7 million overvaluation of its property and a "windfall" of taxes for the local governments.
The Texas Supreme Court must decide two things: Is the new protocol for setting prices in an electricity emergency a “competition rule” under the Public Utility Regulatory Act? And if it is, did the Public Utility Commission of Texas exceed its authority under either PURA or the Administrative Procedure Act in approving it?
A unique site with exotic wildlife and an event center, the Texas Disposal Systems landfill near Austin is also a dump, its lawyer argues. The landfill is fighting to uphold a 2019 appraisal review board decision that lowered its valuation from $21.7 million to $2.8 million as part of an equal and uniform tax protest. Travis Central Appraisal District says a district court should review the landfill’s fair market value because of a lack of comparable properties.
In January the U.S. Supreme Court heard oral arguments in two matters that could significantly change how federal courts are to review decisions made by federal agencies. Chevron deference has often allowed federal agencies to “fill gaps” and implement policy decisions where the statute may not be express. However, the issues before the Supreme Court in Loper Bright Enterprises and Relentless, Inc. call the doctrine’s viability into question.
Aspire Power Ventures filed a direct appeal with the Third Court of Appeals in Austin on Tuesday, challenging three orders issued by the Public Utility Commission of Texas that created and modified a program to provide reserve power in emergency situations. While the stated goal of the ERCOT Contingency Reserve Service is to prevent grid issues like what the state experienced during Winter Storm Uri, Aspire alleges it instead “does nothing to increase actual electricity reserve capacity — in fact, it actually decreases capacity when it is most needed.”
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