MANCHESTER TERM. CORP. v. Texas TX TX Marine Transp., Inc.

Citations: 781 S.W.2d 646; 1989 Tex. App. LEXIS 2659; 1989 WL 126315Docket: 01-88-00666-CV

Court: Court of Appeals of Texas; October 26, 1989; Texas; State Appellate Court

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Manchester Terminal Corporation appeals a trial court's decision that granted a plea of abatement, dismissing its case for lack of subject matter jurisdiction. Manchester, which operates a marine terminal on the Houston Ship Channel, alleges that Texas Marine Transportation, Inc. and Atlantic Richfield Company (Lyondell) caused contamination through petroleum coke dust generated from their operations, significantly harming its business and posing health risks. Manchester claims trespass and nuisance, seeking a permanent injunction against the transportation and storage of petroleum coke and over $12.5 million in damages.

Texas Marine and Lyondell countered with pleas asserting that Manchester's claims were already under review by the Texas Air Control Board (TACB), which had exclusive authority over such matters, including the regulation and investigation of air pollution. They argued that Manchester had not exhausted its administrative remedies and thus the trial court lacked jurisdiction. The Port of Houston did not join these pleas. In response, Manchester contended that the TACB does not hold exclusive jurisdiction over trespass and nuisance claims related to air pollution, asserting that the trial court retains primary jurisdiction and that the Texas Clean Air Act allows private actions for nuisances or damages caused by air pollution.

Manchester contended that it was not required to exhaust administrative remedies with the Texas Air Control Board (TACB) before filing suit for trespass and nuisance, asserting its claims were independent and not intended to disrupt administrative processes. It argued that the Texas Clean Air Act allows private individuals to pursue common-law actions for nuisances or pollution (Tex.Rev.Civ.Stat. Ann. art. 4477-5, sec. 1.06), and that its claims raised inherently judicial questions that fall outside the doctrine of primary jurisdiction, which typically defers to administrative agencies when they have the capacity to address issues. Additionally, Manchester claimed that its requested relief exceeded the TACB's authority, making the primary jurisdiction doctrine inapplicable. The court sustained Manchester's points of error, clarifying that the primary jurisdiction doctrine does not apply to inherently judicial matters unless exclusive jurisdiction is explicitly granted to the administrative body. The Texas Clean Air Act aims to protect air resources from pollution and authorizes the TACB to set standards and enforce regulations; however, it does not confer the TACB exclusive jurisdiction over all claims related to air pollution damages.

Section 1.06 of the Act preserves the right of individuals to pursue common law remedies for pollution or nuisance, allowing them to seek abatement and damages. Manchester has alleged trespass and nuisance, recognized common law claims, and seeks both injunctive relief and damages, which are judicial matters. The Act grants the Texas Air Control Board (TACB) authority to issue emission permits, but does not permit commercial activities that constitute common law trespass or nuisance, even with a valid permit. Texas Marine and Lyondell argue that once the TACB issues a permit, courts cannot intervene, citing cases that assert TACB has exclusive jurisdiction over emission levels. However, Manchester is not contesting the permit itself or seeking to modify emission levels; it is pursuing its right to common law remedies, which the Act explicitly allows.

The court of appeals determined that the trial court did not have jurisdiction to assess the feasibility of proposed construction, distinguishing this case from others. Typically, a party must exhaust administrative remedies before seeking judicial relief if the administrative agency can provide full relief. However, if the agency lacks the authority to grant complete relief or make necessary incidental findings, such remedies are not required. In this instance, Manchester's claims do not necessitate the TACB's expertise, as it does not contest the validity of the TACB permit but seeks remedies for common-law trespass and nuisance. The doctrine of primary jurisdiction does not apply, allowing Manchester to assert its claims without pursuing administrative remedies first.

Texas Marine and Lyondell's argument that a court injunction would invalidate TACB permits is rejected. A valid TACB permit does not authorize actions that constitute trespass or nuisance under the law. Liability for nuisance can be established without proving negligence; the focus is on the degree of danger or annoyance caused. If a commercial activity significantly impairs the comfort of neighboring property owners, it may be deemed a nuisance, warranting judicial relief. Courts generally avoid issuing injunctions that completely halt lawful business operations unless the business is a nuisance per se. However, courts may intervene to protect individuals from nuisances while allowing the business to continue, framing their orders to balance both interests.

The trial court has the ability to issue a decree allowing Texas Marine to operate under its TACB permit while imposing restrictions to prevent further harm to Manchester. It can also award damages to Manchester without hindering Texas Marine's lawful operations. Claims by Manchester, based on trespass and nuisance, do not challenge the TACB permit or its emission levels, therefore, the relief sought would not nullify the permit. The court overruled arguments from the Port of Houston that Manchester's lawsuit is a collateral attack on the permit. Manchester is exercising its common-law remedies under section 1.06 of the Act. The court declined to address Manchester's claim regarding article I, section 17 of the Texas Constitution or other points of error not essential to the appeal. Since the Port of Houston did not file a motion to dismiss or abate in the trial court, its counterarguments regarding liability for the actions of its tenant were not considered. The trial court's order was reversed and the case was remanded for further proceedings.