Travis County Commissioners Court
July 17, 2007
Item A1
A1 is to consider and take appropriate action on a request for financial assistance to prosecute appeal of oak grove plant permit and this situation moves kind of fast. Ms. Noel and I were involved late last week. Travis County did vote to join this effort and at that time we were told that clean cities would be able to pick up all of the cost. They still are. In the meantime, though, some of the local people chatted with local council, legal counsel, the david frederick law firm mainly, and we were kindly advised that it made all of the sense in the world for us to not only join clean cities but to file some papers ourselves. And everybody thought it made all the sense in the world after getting the reasons. That cost is from 15 to $25,000. The lawyers agreed to go ahead and start working. One of the deadlines for the motion for rehearing was yesterday. And a motion for a rehearing was filed and I put that before you a moment ago. I have not read it. I have -- I got it late yesterday from one of the local lawyers, it's a fairly voluminous document. I just kind of fingered through it. And looks fairly impressive. The other deadline is really Thursday for filing the notice of appeal. There will be time after that to do additional work. But the notice has to be filed on -- on Thursday and this motion for rehearing really is asking the agency, tceq, to review its record and find that it has made mistakes. That is seldom done. So those motions are routinely denied. But the law requires that you file the motion in order to have jurisdiction to appeal the case. So that's what that's about. So the question came up, how do we try to -- how do we raise the money? Before Austin energy gave a little money, there was a little -- agents delicate matter -- a little delicate matter because that money was given to the clean air coalition and used for membership fee for the clean air coalition and the clean air force. Dual membership there. We are trying to generate 25,000, the mayor and I will try to raise the other 15, he's convinced that we can do it. Unfortunately, it's hard to get an effort like this of your own without outside counsel. That had already been involved in this thing and kind of knew a whole lot. The other thing is that it does cost money. But they are working. I didn't commit the court one way or the other although I said I thought it was the right thing for us to do. There are a whole lot of members of the clean air force. We are not asking the clean air force itself, but I think the mayor's plan is to contact some of the members, especially the firms to try to get their support. For the effort. I think -- it's reasonable to conclude that it's an uphillary clinton fight, but it's a fight that ought to be fought. The other thing is that -- just before the tceq heard the case and made the decision, we were getting sort of inquiries from the new owners of the coal powered plants, the new-- the -- >> tef. >> tef, that's who it was. And so when the tceq, though, made its decision, they just kept things kind of quiet. I think the way you keep applying pressure, go ahead and exhaust your appeals, maybe something will happen before the end of them. It's a real big deal because clearly with the wind blowing in the wrong direction we are almost -- we are almost given to be in non-attainment. The other thing is with e.p.a. Looking at changes in standards, we will be scuffling anyway to try to beat them. So that's the situation that we have before us. >> [indiscernible] >> yes, sir? >> we are not asking for the county attorney's office to provide help from the enforcement division. You are looking for outside counsel at this point? >> outside counsel has been found. >> and you are not looking for Travis County to be a party. You are just looking for clean air coalition to be the one hiring those counsel and doing those functions. You are just trying to provide more money for that entity to do their task; is that correct? Am I understanding you? >> well, the lawyers will represent basically clean air force, clean air coalition, Travis County residents and Travis County. >> so they are representing Travis County? >> right. >> okay. And you have already discussed this with david and -- >> no. >> okay. >> this came up last Thursday and Friday. The clean air coalition had a telephone conference phone call and the coalition decided this on Thursday. At our last in-person meeting they didn't have a quorum. The officers of the clean air force decided on Friday to join the whole effort. We are treating it really like an extension of the formal approvals that we did before. But what I did for Travis County was right after the tceq issued its ruling, it was -- the clean cities people started asking participants are you still with us or not. I brought it to the Commissioners court and we said yes. At that time the clean cities was saying we had money to meet the court costs for lawyers, et cetera and really they still do. Then what surfaced was the argument that really Travis County and central Texas partners ought to be represented ourselves. So we should join clean cities, but at the same time have lawyers that submit documents for us. That's where we are. So -- so, you know, this kind of finalized on Friday. One deadline was yesterday. Lawyers for clean cities, the sus man law firm has been working on this thing for months, they were preparing legal documents for clean cities anyway. Our conference with david frederick, local counsel, took place when. >> Thursday afternoon. >> took place Thursday afternoon and noel and I were invited. It was in this building. But I really didn't know the essence of the conversation until -- until in the meeting. The meeting -- what time? Two or three in the afternoon, wasn't it? >> crebt. It was 2:30. Actually I stand corrected. It was on Wednesday when we met with the attorneys. >> okay. David frederick was there along with one of his colleagues. They are the lawyers who said -- they didn't say they had to hire us. In fact we had two or three or four names. I didn't contact legal counsel. Another person doing kind of volunteering his time, another lawyer. So this thing is kind of -- kind of surfaced. >> so this -- this $25,000, is this a payment sort of a retroactive payment for services already rendered in regard to the motion for rehearing or is this $25,000 for -- for representation throughout the -- >> throughout the appeal. But it will cover some fees that will -- for services provided this past weekend. Now, you know, the -- my idea was get the papers from the suskin law firm, figure what what we need to change those. They were supposed to be delivered yesterday. As late as 5:00 Friday they didn't have anything to deliver. If you are going to get legal counsel, it kind of makes sense to say okay see what we can do over the weekend. If we get their papers on Monday, see how we can pick of theirs, add it to the best of ours, by all means meet that deadline, that's what they did. >> they are representing, the attorneys for the central Texas clean air coalition and early action compact. So they are representing us in our membership in both the clean air coalition and the early action compact task force? >> right. >> really, what I have learned is that the Williamson county data is as important as Travis County data in terms of sewer, pollution, adverse impact of these plans. So the coals is really made up of elected officials in hays county, Williamson county, Travis County. That's why it kind of made sense to me for the mayor and I to take the lead, raising the -- [indiscernible] >>> Commissioner eckhardt is asking all of the right questions. [indiscernible] to the auditor's office as well. Do you foresee some kind of like contract amendment to their contract that would -- because their purposes are all in line with what we would do from a public purpose standpoint. That we can continue to fund that contract and -- and-- owe how do we do that? I had not presumed that the Commissioners court would rubber stamp this. I thought there would be questions like we are asking right now. But if the court seems inclined to do this. What we would do is between now and next Tuesday do it the right way. >> there's no representations, being more specific about what entity they are representing and the funding issues? >> right. >> are there any other counties that are willing to participate outside of the -- outside of the boundaries of the coalition where the -- where the example where the actual facility is located within that county, then counties adjacent to those counties, have there been any inkling of other financial participation from them? Outside of the county that -- I would like to know all of that -- >> they are part of clean cities. The -- it's really the former mayor of dallas, she continues as chairperson for the city of dallas. The other thing is -- >> waco? >> orlando -- >> repeat that believes. >> our land our lives. A group of property owners that live in the robertson county area. >> okay. It's good to know who is all a part and it's just not the coalition of clean air force coalition and the bunch of the counties that the just mentioned being a part of that. This thing is a lot larger than what's being talked about here today. It really need to include who is all involved in this, so in the public hearing this is just not a Travis County issue. This is an issue that affects not only the counties that surrounding Travis County, but other counties outside of travis. So it's a bigger, it's a bigger issue. I just want to make sure that we continue to keep our hands on it, on the pulse of this issue. >> the others had -- they have been probably more actively involved, they had -- they have had the money, they had their own data. And we are part of that effort. But they don't necessarily make the arguments that we would make for central Texas. The coalition is really the capcog counties. But the leader in the early action compact really were Williamson county, travis hays and to a lesser extent bastrop and caldwell. >> robertson county put any money in it? >> they have their own lawsuit that they are moving forward with. Not robertson county. It's our land our lives, the property owners in robertson county. >> but it's robertson county putting money in it? >> no, I don't believe so. >> so these are citizens in robertson county. >> yes, private. >> but robertson county doesn't see fit to put money in it. >> correct. >> why is that. >> the mayor is in favor of this plan. >> because of jobs? >> I believe so. >> well, here's where I'm getting real nervous. When we started this thing with laura miller coming in, we gave some dollars, it wasn't a lawsuit. It was to go and to gather information so that we could make sure that tceq had all of the necessary information from at least, you know, our side with regards to our clean air. I specifically asked, I said is this -- is this our lawsuit money and the answer was no. Should I not be nervous that this is what this is moving towards? That we are -- that we are about to spend money towards a lawsuit? I mean is that -- let's just say it if that's what we are moving toward. >> we are joining a lawsuit. >> okay. >> because tceq will turndown the request for rehearing. >> okay. >> then what -- >> we are part of the lawsuit anyway. We were just told before that they had the money for court costs and the lawsuit [indiscernible] after tceq we will against -- for the permit, I came back to court and said they want to know whether we are involved in the next step. The next step is -- >> [multiple voices] >> basically. The next step is a request for a rehear, maybe one of those is granted in a blue moon. But typically agencies don't admit that they made mistakes unless there's some legal mistake. So patently clear that they can't turn it down. So we are in litigation but the -- the thing that -- that impressed me was that the others have been fighting a good fight and we are part of their effort, but they don't necessarily make the central Texas argument. And my guess is if we asked them to make it, maybe they would. But the argument now is we probably ought to be in there making our argument for ourselves. And then the question -- the question then becomes well what's the cost? At the outside, it's $25,000. That's supposed to be through the appeal. >> that's -- the appeal of the -- of the motion for rehearing. But then procedurally speaking this is a motion to rehearing. Once it's denied then it's a question of whether to take it to district court. >> this is through district court. This is not the appeal of the district court decision, though. The good thing about the district court is that it will be filed in state district court in Travis County. So we will get fairness, I don't know if we will get [indiscernible] treatment. But beyond -- we were told it would get you through the district court appeal. But -- but a lot depends on what the district judge says and then the question is then do you want to take this to the circuit court and maybe so, maybe not. >> I see. So it's a motion for rehearing and be prepared to appeal that to the district court. Okay. >> right. They have kind of made it clear, hey,, you know, this is a matter of law that you have to file the motion for rehearing. We don't expect it to be granted, but whatever error there is, also, the error that exists, if any, is in the record. And we submitted all of the central Texas data, see what I'm saying, the other thing is that they really didn't treat our filing that seriously, which may be the point of error. They were supposed to respond to it. We were told they half heartedly responded. >> judge [indiscernible] sit here and talk on this particular issue, I gets what I need to know is if the court act favorably in funding our portion as far as what we need to fund, to get tceq into the appeals process, going with the appeals process, how long would we have within that time frame to mauro stiewr that we get our -- to make sure that we get our points across in the appeals process itself? Do we have a time line? Things are always within a time range. This set of 30 days for this, 60 days for that, da-da-da, on down the line. Do we have any idea of what as far as time lines that we are involved with in this process? >> the time to file the appeals in the state district court is the 20th, which is Friday. A lot of it depends on what the state district judge orders in terms of preparation for a decision. Normally all of this turns, though, on the administrative record, right, john? So it's not like you can call witnesses and do a whole lot of other stuff. That's why the record is real important. So it will be a pretty fast turn around time based -- compared to other cases. So I think that you are looking at most of the time a matter of months. Then a judge could take it under advisement, a judge could basically render fairly soon after an argument is made on the record. The key thing is you are kind of limited to what we already put in the record. We put the best stuff that we have, all of the data, studies, all of that stuff, pollution, early action compact. What tceq basically worked with us. It's a pretty good record for us we think. Ance to your question -- >> the first beginning step of the process. >> right. >> yesterday was -- >> what I handed out earlier was what was filed yesterday. >> right. >> which is a prerequisite to qualifying to file the appeal. To give standing to file the appeal. >> do you have any idea as to how long this could go on, how much we could end up spending, I mean,, you know, with this deal, I mean, it's this one of these things that the coming may happen before we find out and we are going to continue to be asked for more money, more money, more money to fight this thing, knowing what we are staring at, that is tceq -- >> we can withdraw from the lawsuit any time that we want to. >> I realize that. So all of the money that we would have spent up to that time would have been just for -- >> the total that I'm looking at now is $10,000. I had been convinced over the last few days it would be a good investment to go to the next step which is 10,000 bucks. After the district court's ruling, if the judge here in Travis County kind of rules on us, then it may be that we have shot our best foot and can't win. So I wouldn't advise spending more money and going further. But each step of the way we will have an opportunity to decide are we still with them or do we basically just kind of give up. So right now, it's really the 10,000 or 25,000 is the total commitment. The lawyers have signed on to represent us through the district court of appeal for that maximum amount. They said between 15 and 25 and our experience has been, too, if they say that, you had better go out and raise $25,000. So I'm treating the 10 as a maximum at this point and to be honest, based on how these cases go, on administrative appeals, unless there's something awfully positive to look at after the district court level, you just have to stick with that decision, I think. I think we ought to indicate whether we are leaning in favor of doing it. Because if that is true, we need to go ahead and figure out what we need to do legally to cover the procedural steps at Travis County. The other thing is that I told the mayor that I would let him know because he and I need to put together strategies to try to raise the other 15 outside of Travis County. >> it's -- would it be advisable at this point to -- well, I'll just throw it out there. A motion in favor of a financial commitment towards this appeal, the details to be worked out over the week, and bring it back next week so that we can nail down the details of that financial commitment. >> that's what I'm saying basically. >> the time lines won't interfere with the going to the next -- >> they are going to want me to say hey I went to the county, Travis County is on board for the 10,000, we need to go ahead and do the necessary paperwork to get that done. It will be back on the court's agenda on the 24th and we expect the appropriate paperwork to be approved and we will ask the auditor to cut a check expeditiously. That will free us up to try to look elsewhere for the other 15. The other thing is I didn't know -- the other lawyers on the case have been involved on their learning surf was a whole lot shorter. The other thing is I do know that you really caught my full time attention for beginning last Friday through I would say this coming Friday at 5:00 and who knows what after that because a lot depends on what happens and I just talked to john and david escamilla would view it as a non-issue. It's a major undertaking I think. >> it is. I for one have a real desire to see the can Travis County attorney's office grow in land use and environmental enforcement. I would advocate for us to commit to financial support, but not necessarily to a number at this point until we've had the opportunity to speak with the other law firm, see how our in-house council can support that law firm and come to a firm agreement about, I mean, because as the appeals processings on, we might be able to have a real -- our in-house law firm may have a real stake in that. That could be mutually beneficial and could strengthen our representation and our abilities in-house for the future. >> you know the fred lick law firm. >> these are environmental lawyers, this is all they do. I think that like the lawyer we chatted with who was kind of volunteering his time, general practitioner, his first sort of acknowledgment was he is not an expert in this area. So if he had been given six months, my guess is he could bring himself up to speed. >> [indiscernible] >> trying not to call his name. >> our office. >> no, this is outside -- >> all right. >> he kind of set up the meaning with david frederick and his law firm, what I'm getting to is there are people who do this just full time and then the time constraints didn't really allow a whole lot of other stuff. After Friday, though, then the time constraint would be gone. The problem that I have got is I don't know that it's specific enough to go back and say we are supporting financially what I was saying hey we are good for that $10,000. Now, but if -- if we want more county involvement, I don't know that they will necessarily have any problem with that. I don't see them doing a whole lot until after Friday, though, because what they were saying was they could commit the legal counsel to spend full-time and attention on this through Friday. They did commit to do that. >> what you are saying you still wanting to keep the door open if the county attorney's office elect to get involved. >> that's fine with me. >> I think what I'm trying to -- that's what I'm hearing is that we definitely don't want to shut the door in the face of the county attorneys and let them get involved in this process because there are enforcement -- there may be enforcement implications later on down the line and there is an environmental law office, environmental extension of the county attorney's office who -- who actually have that ability. So if you are suggesting that -- I think what I'm hearing Commissioner eckhardt saying, also, is that -- >> I want to see us have more involvement is what I'm saying. >> exactly. Let them -- >> we have $10,000 available to assist -- [multiple voices] >> jump for joy. >> is that a motion? >> I thought david came to the microphone. >> well, I just -- I'm just saying I don't have any problem with anything that you satisfied Commissioner Davis. You did use the word elect. I want you to understand we are your lawyers. The action is necessary, you want us involved, we are involved, it's very interesting to us. >> [indiscernible] >> I appreciate that. To follow what Commissioner eckhardt is saying. It's certainly an area that we have interest. This is already underway, I don't want to be seen as slowing anything down or impeding on anyone else. We also have something to add, the court was interested in us spending our time on that, I think we would bring some value to the table. In saying that again I don't want to do anything to impede on the progress that's already been made. >> will this $10,000 be limited to all that we would spend until we get a district judge's decision on this? I mean, if that's the case then -- >> I don't have any problem with that. >> I can deny, I'm willing to go with it to that. I can see what happens with this deal. >> that's my understanding, I have no problem committing to that. This gets us through the district court level. We will do the necessary paperwork. >> we need an agreement with the firm -- we will work on that. >> so I can put you in touch with -- with the lawyer. >> the firm or whatever paperwork that you need to get back on next week's agenda. >> okay. >> excellent presentation. Most of my understanding is for Travis County to basically agree to remain committed, pledge $10,000 as requested, spend the next week doing the necessary paperwork and then make it known that the county attorney is available to assist. Now, I can have -- I can ask that one of the lawyers be -- come to court next Tuesday if we want to talk to them. >> well, we will certainly be contacting them in the meantime, but it's up to you. >> I would suggest that -- just to tag on to that motion of requesting the county attorney's office to -- to attend the hearings. To be at council table. >> I have no problem with that. David? I think the county attorneys have been showing the work anyway. >> yeah. >> we will -- whatever you wear. But we will get some people involved in it and up to speed. I think next week we'll be in a much better position to explain the options of where we might fit in. >> I think it will be a real benefit. >> did you get that motion? Seconded by Commissioner Davis. Discussion? All in favor? That passes by unanimous vote. See, joe, I told you that would be a softball, didn't i? [laughter] let's do another one that will be easy y'all. I may need me a five minutes recess.
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Last Modified:
Wednesday, July 18, 2007, 18:30 AM