Bonser-Lain v. Texas Commission on Environmental Quality

The Texas Court of Appeals ruled that the district court erred in concluding that it had subject matter jurisdiction. The appellate court concluded that neither the Texas Administrative Procedure Act nor the Texas Water Code waived sovereign immunity for judicial review of denials of rulemaking petitions.

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In July 2012, the judge hearing the case issued a letter order indicating that the court would hold that the Commission’s conclusion that the Public Trust Doctrine is limited to waters was legally invalid, and that the doctrine includes all natural resources of the state. The judge also held that the Commission’s conclusion that it was prohibited from regulating air quality pursuant to Section 109 of the Clean Air Act was also legally erroneous because the Clean Air Act was a floor, not a ceiling. The court said, however, that it would find that because the "legal landscape is uncertain" due to ongoing state and federal cases concerning federal and state authority to regulate greenhouse gases, the court would find that the Commission's refusal to exercise its regulatory authority was a reasonable exercise of discretion.

The Texas Commission on Environmental Quality denied the petition, stating that Texas was currently in litigation with EPA concerning the regulation of greenhouse gases, and that the use of the public trust doctrine in the state had been limited to waters and did not extend to greenhouse gases.