Harris County v. International Paper Company

Opinion

ACCEPTED

01-15-00354-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS 5/7/2015 2:08:15 PM CHRISTOPHER PRINE

CLERK

No. 01-15-00354-CV IN THE COURT OF APPEALS FILED IN 1st COURT OF APPEALS

FOR THE FIRST JUDICIAL DISTRICT OF TEXAS AT HOUSTON HOUSTON, TEXAS

5/7/2015 2:08:15 PM

HARRIS COUNTY, TEXAS,

CHRISTOPHER A. PRINE

Appellant/Cross-Appellee, Clerk

AND

THE STATE OF TEXAS, ACTING BY AND THROUGH THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, A NECESSARY AND INDISPENSABLE PARTY, Appellant/Cross Appellee, V.

INTERNATIONAL PAPER COMPANY, Appellee/Cross-Appellant.

On Appeal from the 295th Judicial District Court of Harris County, Texas

MOTION FOR BRIEFING SCHEDULE

KEN PAXTON ANTHONY W. BENEDICT Attorney General of Texas Assistant Attorney General State Bar No. 02129100

CHARLES E. ROY Anthony.Benedict@texasattorneygeneral.gov First Assistant Attorney General LINDA B. SECORD

JAMES E. DAVIS Assistant Attorney General Deputy Attorney General State Bar No. 17973400 for Civil Litigation Linda.Secord@texasattorneygeneral.gov

JON NIERMANN Environmental Protection Division Chief, Environmental Protection P.O. Box 12548, MC-066 Division Austin, Texas 78711-2548 Tel: (512) 463-2012

MARY E. SMITH Fax: (512) 320-0911 Assistant Attorney General ATTORNEYS FOR THE TEXAS State Bar No. 24041941 COMMISSION ON Mary.Smith@texasattorneygeneral.gov ENVIRONMENTAL QUALITY

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY’S RESPONSE TO INTERNATIONAL PAPER COMPANY’S MOTION FOR BRIEFING SCHEDULE

On May 5, 2015, International Paper Company (“IP”) filed its Motion for

Briefing Schedule. The Texas Commission on Environmental Quality (“TCEQ”), a

necessary and indispensable party pursuant to Tex. Water Code § 7.353, asks this

Court to enter the following consolidated briefing schedule, which recognizes

TCEQ’s unique role in this case and extends the schedule by only 20 days, as an

alternative to IP’s proposal.

BACKGROUND

The trial court entered a final judgment in the underlying case on January 20,

2015. On April 17 and 22, 2015, respectively, Harris County and TCEQ filed notices

of appeal. On April 30, 2015, IP filed a notice of cross-appeal. On May 5, 2015, IP

filed a motion for briefing schedule.

ARGUMENT

The TCEQ asks the Court to order the following briefing schedule subject to

any motion for extension of time:

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Filing Due Date Harris County’s appellant brief 30 days after the record is filed TCEQ’s appellant brief 10 days after Harris County’s appellant brief is filed

International Paper’s appellee and 30 days after the TCEQ’s appellant cross-appellant brief brief is filed Harris County’s reply to appellee brief 20 days after International Paper’s and response to cross-appellant brief appellee/cross-appellant brief is filed TCEQ’s reply to appellee brief and 10 days after Harris County’s response to cross-appellant brief reply/response brief is filed International Paper’s cross-reply brief 20 days after TCEQ’s reply/response brief is filed

TCEQ’s proposed schedule allows for the 30-day extension for the filing of

International Paper’s cross-appellant brief and the waiver of TCEQ’s own

appellant’s reply brief, as requested in International Paper’s motion. The only

difference between the two schedules is TCEQ’s request for a ten-day extension to

file its appellant brief and its reply/response to International Paper’s appellee and

cross-appellant brief.

The TCEQ seeks this additional time because of its unique role in this case.

Under the Water Code, local governments, like Harris County, may bring suits to

enforce certain rules and statutes administered by the TCEQ. Tex. Water Code

§ 7.351. The TCEQ is a statutory necessary and indispensable party so that it may

address statewide interests that arise in this and similar cases. See Tex. Water Code

§ 7.353. Although the TCEQ anticipates working closely with Harris County to

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coordinate its briefing, until Harris County’s briefing is final, the TCEQ will not

know whether and to what extent additional briefing may be necessary to address

state interests. The TCEQ requests a modest amount of additional time for its initial

and reply/response briefs so that it may focus on these state interests without undue

repetition of Harris County’s briefs, conserving the resources of this Court and the

parties to the case.

PRAYER

For the reasons stated above, the TCEQ asks the Court to grant its motion for

briefing schedule.

Respectfully submitted,

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

JAMES E. DAVIS Deputy Attorney General for Civil Litigation

JON NIERMANN Chief, Environmental Protection Division

/s/ Mary E. Smith MARY E. SMITH Assistant Attorney General State Bar No. 24041947

ANTHONY W. BENEDICT Assistant Attorney General State Bar No. 02129100

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LINDA B. SECORD Assistant Attorney General State Bar No. 17973400

Office of the Attorney General of Texas Environmental Protection Division P. O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2012 (512) 320-0911 (Facsimile) Mary.Smith@texasattorneygeneral.gov Anthony.Benedict@texasattorneygeneral.gov Linda.Secord@texasattorneygeneral.gov ATTORNEYS FOR THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

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CERTIFICATE OF CONFERENCE

I certify that on April 29, 2015, and May 4, 2015, Linda Secord conferred with counsel for International Paper regarding the briefing scheduled proposed in this motion. And, on May 6, 2015, I conferred with Harris County regarding the proposed schedule. International Paper opposes the schedule because it prefers the schedule in its motion. Harris County is unopposed to the schedule proposed in this response.

/s/ Mary E. Smith Mary E. Smith

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CERTIFICATE OF SERVICE

I certify that a copy of the Texas Commission on Environmental Quality’s Response to International Paper Company’s Motion for Briefing Schedule was served on each person listed below via e-service and e-mail on May 7, 2015.

/s/ Mary E. Smith Mary E. Smith

Winstol D. Carter, Jr. Allyson N. Ho Craig A. Stanfield Morgan, Lewis & Bockius, LLP Morgan, Lewis & Bockius, LLP 1717 Main St., Suite 3200 1000 Louisiana St., Suite 4000 Dallas, TX 75201 Houston, Texas 77002 Telephone: (214) 466-4000 Telephone: (713) 890-5000 Facsimile: (214) 466-4001 Facsimile: (713) 890-5001 Email: aho@morganlewis.com Email: wcarter@morganlewis.com Attorneys for International Paper, Inc. Email: cstanfield@morganlewis.com Attorneys for International Paper, Inc.

Debra Tsuchiyama Baker Rock W.A. Owens Earnest W. Wotring Terence L. O’Rourke Michael Connelly Vince Ryan John Muir Harris County Attorney David George Office of the Harris County Attorney Connelly, Baker, Wotring, LLP Texas Bar No. 15311000 700 JPMorgan Chase Tower 1019 Congress, 15th Floor 600 Travis Street Houston, Texas 77002 Houston, Texas 77002 Email: Rock.Owens@cao.hctx.net Email: dbaker@connellybaker.com Attorneys for Harris County Email: ewotring@connellybaker.com Email: mconnelly@connellybaker.com Email: jmuir@connellybaker.com