Untitled Texas Attorney General Opinion

AUSTXN, ?kXAR 78711 Honorable Cries Cole Opinion No. M-190 Chairman, State Committee for Study of Lend Uee and RI?: Whether Sec. 13(D) of the Environmental Control, Clean Air Act of Texas State Senate (Chapter 727, Actc of the Auetln, Texae 60th Legielature, R.S. 1967) 'requlrec that a local govern- ment obtain Ttxac lair Control Board approval before It may institute a civil cult for penalties or for ~lnjunctlve rellef under Section 12 of said Act, and related ques- tlone. Dear Sir: Your request for an opinion from thle office concern- ing the power of local govtrnmente under the Clean Air Act of Texas, 1967, (Cha ter 727, Acta of the 60th Legislature, R.S., Page 1941; Art. 4f:77-5, V.C.S.) and the Texas Water Quality Act of 1967, (Chapter 313; Acts of tht 60th Legislature, R.S., Page 745; Atit. 7621d-1, V.C.S.), relate to almost identical provl- slahs In the two laws contiernlng the power of local governments to act. You pose thirteen qutatlons which by nature of their Importance muet be repeated herein. 1. "Does Section 13(D) of the Clean Air Act of Texae, 1967, require that a local government gain the approval of the 'Texas Air Control Board before It may lnstltutt a civil cult for penaltlee (or an Injunctive proceeding) under Section 12 of the Clean Air Act of Ttxae, 19677" Hon. Crlss Cole Opinion No, M-190 - Page 2 It is our opinion that a local govkmment may act ,ln- dependently of the Texas Air Control Board in exerclslng~lta powers under Section 13(D): of, the, ,,Clean#Air Act, ofY,:~T~x~&,~.i ,;, This,,,,,,, Sectibn prov$des: as, follows; “(D) In’ the s’ame;:k&i~er F& the,‘board, :lai.lbcal\, “’ government, tiporilformal. rfisolutlon of’ its govei+ lng body, may enforce through Its own attorney .: ~~ the provisions of Section 12 of this Act. How- ever, a local,government may not bring an action. against a state agency~or department, another local government or any other political sub- division of the state for the assessment of.the penalty specified In Section 12. In any suit Instituted by a local government under this sub- section, the boards-is authorized to be and must be a necessary party to the local government Is suit.” It Is obvious from the above statute that Section 12 cover‘8 not only penalty acts for civil penalties but Injunctive proceedings as well. The requirement for joinder of the Texas Air Control Board Is plain. and the Attorney General or Board must be aerved wlth,pEocesk as a necessary -arty. Coffee v. Wllllam Marsh Rice Universlt 403 S.W.2d 3 fI0 (Tex.‘Sup.66). xn addition to the above act ns, it Is our opinion that any other suits brought under Section 14 of,the Act desianed-to pur- sue all common law remedies available to abate the pollution-or other nuisances or for!damages therefor, would require the joinder of the T&as Air Ccintro$ ,Eoard as a third party plaintiff br defendant under Tex. Rules Clv. Proc., Rule 39. 2. ,“DcSectlons~. 15(a) (2) and 16(g) of the Texas Water Quality Act of 1967,require that a local government gain the approval of the Texas Water Quality Board before it may Institute ,a clvll suits for penalties under Sections 14 and 15 or an InJurictlve proceed- ing under Section 16(e) of,the Texas Water Quality Act of lg67?” The provisions of+the’ sections. of the Tixas Water Quality Act of 1967 are almost ld’triticalj~~n’substance~~o those discussed above In Question 1 ,&nd ti$&tianie”answer ,would apply thereto.’ Under the provlsions.;of ‘S%tion, l'5j~,:.UhqTexas Water Quality’~ Board must be JoXned ‘5s a ,,$tiird~.pa‘rty pl@ilitiff ‘or defendant In any suit by ,a, BoaI. goytr?ent, ‘for injunc,t,&ve. relief, c,lvll penalties, or oommoh~:nuPsafices.‘~ :, ~,;904; :. “,: Hon. Crlss Cole Opinion No. M-190 - Page 3 "Under the Texas :R&es 'ofi',,C.vlll:jProOedure's 'IS " $ there a~,dlfferellce:;in.:,legal.'efftct' b&tweeA'?he ',~, DhFaab "The'Board'i&~autho&ztd~to be and must, be a necessary party,to the local government's suit" as used In Section 13(D) of the Clean Air Act and the phrase "The Board created by ttiis act Is authorized to be and must be a necessary and Indispensable party to any suit bcought by a local government under this section , as used In Sections 15(a) i2) and 16(g) of the Texas Water Quality ect? Although there,ls a legal difference In "necessary" parties and "Indispensable" parties, It Is our opinion, after examining the Texas Water Quality Act and the Texas Cl&an Air Act, that In each suit brought by a local government, such as a city, county or water dlstrlct, the appropriate Board, whether It be the Texas Air Control Board (for air pollution) or the Texas Water Quality Board (for water pollution), Is : Indispensable and must be joined as a third party plaintiff or defendant, Tex. Rules Clv. Proc. Rule 39; Texas Electric Service Company v,'Faudrte, 410 S.W.2d '477, (Tex.Clv.App., '1967, error ref.). We will consider the next two questions together: “(.a) "If the Texas Water Quality Eoard were olned in a suit under Section 15(a) (2) or 1 (g) of the Texas Water Quality Act, would the BOardIs refusal to participate In the action as a party plaintiff prevent the local govern- ment that filed the suit from prosecuting the action to Its conclusion?" (b) "If the Texas Air Control Board were joined In a suit under Section 13(D) of the Clean Air Act of Texas, would the Eoard's refusal to participate In the action .as a party plaintiff prohibit the local government that file&the suit from Rrosecutlng the action to Its conclusion? -905- Hon. Crlss Cole Opinion No. M-190 - Page 4 ,. ‘hit is our: opinion that once the appropriati State ~’ Board or the AttoGey,,Gene,ral have been served ‘.wlth citation in ,the manner, provided by, ‘law, SaSlure,.;,?:?~,(refus&l, OS, the State Board ,tti, further Participate “lti.‘tt$;,actl~n iia “a third ” party plaintiff or deferidint, Iwould liot pr’event the’ Court from proceeding in the case, or the dppellate dourts from exercising any appeal jurisdiction therein. CoSfe,e v. William Rice University, aupra. 5. The next Inquiry Is quoted as follows: “Section 12 OS Chapter 42, Acts of the 57th Legislature, First Called Session, 1961, (Article 7621d,, Vernonla Texas Civil Statutes - repealed by the,60th Leglalature) providea “This Act shall not In any way affect the right of any person to puraue,all legal and, equitable remedies available to abate pollu- tion and other nuisances or recover damages therefrom or both.” Section 20 of the Texas Water Quality Act of 1967 ,provldes, ‘This. Act shall not In any way affect,the right OS .any private corporation or Individual to pursue all legal and equitable remedies to abate a . condition of pollution or other nuisances or recover damages therefrom, or both,’ Section 23 of the Texas Water Quality Aat of 1967, In part, provldea ‘To the extent that a general, local, or apeclal l&w may be oonstrued to give local governments, aa defined In this act, the authority to set and enforce water quality criteria other than those adopted by the Texas Water Quality Board that law Is repealed.’ What effect, if any, do the quoted provisions of the Texas Water Quality Act cif 1967 have on the authorlty of a city or county to prosecute a nuisance suit - particularly under the pro- visions of Article 695, Vernon’s Texas Penal Code? Ia the effect different than the effect of the quoted provision from Article 7621d?” Sections 20 and 23, Artgcle 7621d-1, do not affedt the authority of a city or county to abate pollution as a c,ovon law public nuisance. The Texaa Water Quality Act of 1967 la not the aole remedy to abate pc?llution as a public nulaance, ,nor does It cover the entire field of nuisance In pollution -906- Hon. Crlss Cole Oplnlon No. M-190 - Page 5 cases, particularly where then basis of complaint may be some- thing else, such as health hazards, which Is the purpose of Article 695, Verndnjs Penal Code, to prohibit. Section 20, Article .7621d-1, simply preserve 8 the right to bring private nuleance cases apart from the operation of the Act. 6. ~Your next question we.dlspose of asks for statutory con- struction:,. "When construed together, what effect have Sections 14 and 15 of the Clean Air Act of Texas had upon the nuisance-abatement and ordinance-making power of local governments In the matter of air pollution? Do Sections 14 and 15 have any effect on the use of Article 695, Vernon's Texas Penal Code?" : It I& 'our opinion that Sections 14 and 15,of the Clean Air Act of Texas a&merely a statutory cumulation of rights that have not been superseded by the statutes. The real question In regard to validity of local ordinances as to air pollution rests with the determination under Section 15 as to whether such ordinances are in fact consistent with the provisions of any statute or rules, regu- lations or orders of the Texas Air Control Board. 7. You next ask: : "If a local government making an Inspection under Section 16(a) of the Texas Water Quality Act dls- covers either (1) that a person or another local government discharging effluent Into the public waters located In the areas over which the local government has jurlsdlctlon has not obtained a per- mit for such a disc,harge;. or (2) that a person or another local government who possesses a permit to discharge Into the public waters are making dls- charges that are not In compliance with the re- quirement@ of the permlt;does the local govern- ment have ample authority under the Texas Water Qu;;;;;,,Act to enjoin or seek penalties for the In line with the previous dlecusslons of the powers of the local governments, there Is no vested right to commit a nul- s,ance or to violate a statute grounded upon nuisances, and the -907- I . . Hon. Crlss. Cole Opinion No. M-190 - Page 6 only effect of a permit from the Texas Water Quality Board would be to protect the Permittee-from "statutory :pollutlon". If, a nul- sance In fact exists, the local government could take. advantage of, Its powers of Injunction orcivil penalties. under.the',Act.~ In':thls connection It Is well to rememberthat one 1ocaI'government may not sue a governmental agency. The State of Texas can bring such's suit and a local government could then Intervene. a. Your Inquiry' concernlng,lnjunctlon and penalties and powers reads: "If a local government makes'an Inspection under Section 13(B) of the Clean Air Act of 1967, and discovers that emissions from a source do not meet the requirements set by the Texas Air Con- trol Hoard or that a person Is not In compliance with an order, rule, OCRregulati;on of the Texas Air Control Hoard, does the local government have ample authority under the Texas Air Control Act to enjoin or seek penalties for the action?" The rules and regulations of the Texas Air Control Hoard, which are reasonable and made In conformity with the statutory authority therein given, may be a source of violation which a local government' could enforce by seeking Injunction or civil penalt,les for violation of the rule, re ulatlon or ordeer of the Air Control Hoard. Sections L3(B):and f D) Clean Alr Act, state that this may be done. 9. .' You Inquire further as follows: "Under the Clean Air Act of Texas, 1967, does a local government have the authority to enforce the provisions of Section 12 of the Act against a source that Is located outside the territorial jurisdiction of the local government but Is not causing a condition of air pollution Inside the territorial jurisdiction of the local govern- ment?" Suit for statutory air pollution must be for "emission" of~the alr pollutant, and If the emission occurs outside of the territorial area of the local government and does not cause hurt or injury within Its boundaries or jurisdiction, no suit can be brought -908- Hon. Crlss Cole Opinion No. M-190 - Page 7 for statutory air pollution. This opinion does not pass upon any causes of action which Section 14 preserves. 10. You ask, "Under the TexasWater Quality Act of 1967, does a local government have the authority to enforce the provisions of Sections 14 and 15 of the Act against a person located outside the territorial jurisdiction of the local government but whose activities are causing a condition of pollution inside the territorial jurisdiction of the local government?" Suit for statutory water pollutlon'under the Texas Water Quality Act Is to be brought under Section 14 at the place where the water pollutant Is thrown, drained, etc. Into the stream.~ If such a point on a stream Is outslde the territorial jurisdiction of the local government, and hurt or Injury is caused within the territorial jurisdiction of the local government, suit can be brought where the pollutant is being put Into the stream. There may be additional jurisdiction by the local government to bring a suit elsewhere under Section 15 of the Texas Water Quality Act. Harrlngton v. State, 363 S.W.2d 32l,'(Tex.Clv.App., 1963, error ref. n.r.e. ; Mitchell v. State, 371 S.W.2d 799, (Tex.Clv.App., 1963; error diem. e 11. We will'now consider your last two questions together: ia) "Does Section 16(c) of the Texas Water Quality Act require that a local government adopt a separate resolution authorizing each enforce- ment $&fan that it takes under the Act; or may the local government adopt one general re- solution (containing appropriate guidelines) that authorizes l.ts appropriate officials to take enforcement action under the Texas Water Quality Act as the need arises?" (b) I’-; Sectlon 13(D) of the Clean Alr Act of s require that a local government adopt a separate resolution authorlzlng each en- forcement action that it takes under the Act; or may the..?ccal government adopt one general Hon. ,Crlss Cole Opinion No. M-190 - Page 8 ,,. 5. resolution (containing approprlate.gulde- ,llnee) that authorizes .its appropriate .' offlclals to take'enforcement action ,under' the Texas Clean Air Act as the.need arlses?" ,' 'Under both the',~neaily Identical provisions ~of.'the two sta- ,tutei? relating to water and air pollution, the Legislature speaks of a "suit" being brought "upon formal resolution of ,%ts.govern$ng body", and the word !!sult" Is used In the singularwhich might mean that a formalH;;E;;;tlon l%needed for each suit brought by a local' overnment. Section 2.02(b) of Article 5429b72, V.C.S. Z' 7 The Code Construct&Act),, provides that the singular Ineludes the plural. We think the remedial and procedural statute does not speclSlcally require a formal resolution for the brIngIn& of each suit. Futhermore, If this statute IS subject to ,constructlonr must be liberally construed, and we are not at liberty to read such a restriction Into the statute. The discretion In ~such cases'is to be left to the local governing body. It would thus appear that a general authorization for suits under the Texas Water Quality Act or Texas Ali? Control Act of.1967 Is sufficient. SUMMARY A local government may Institute 'suits 5 without the Texas Air Control Board approval or Texas,Water Qua$lty Board approval under the provisions of Article 4477-5; V.C.S., or Article 7621d-1, V.C.S.; the Water or'Alr Eoard~ must be joined a8 a th$rd party plaintiff or ,defendant under Tex. Rules Clv. Proc. Rule 39.~ ry truly yours, 5 i!F?%i% orney General of Texas Prepared by Roger Tyler Assistant Attorney General APPROVED: ‘I OPINION COMMITTEE Hawthorne Phlllios. Chairman Kerns Taylor, Co%i&man John Grace John Banks Robert Flowers 'j ,, Dyer Moore, Jr. STAFF LEGALASSISTANT: * A. J. Carubbl) Jr. - 910 -