In re Dow Hydrocarbons — Texas appeals court orders dismissal of private group’s Water Code enforcement claims

Case
In re Dow Hydrocarbons and Resources, LLC and Union Carbide Corporation
Court
Texas Fifteenth Court of Appeals
Judge
Scott A. Brister (Greg Abbott, 2024); Justice Field; Justice Farris
Date Decided
October 22, 2026
Docket No.
15-26-00119-CV
Topics
Environmental Enforcement; Private Right of Action; Intervention; Mandamus
Source
Read the full opinion

Background

Dow Hydrocarbons and Resources, LLC and Union Carbide Corporation operate the Seadrift Operations Facility, a plastics-manufacturing plant in Calhoun County. Acting at the Texas Commission on Environmental Quality’s request, the Texas Attorney General sued the companies in February 2026, alleging that plastic pellets had been discharged into San Antonio Bay in violation of the Texas Water Code, administrative rules, and the facility’s permit. The State sought injunctive relief, civil penalties, and attorney’s fees.

San Antonio Bay Estuarine Waterkeeper intervened, adopting TCEQ’s claims for injunctive relief and civil penalties and alleging additional pollution. The companies moved under Texas Rule of Civil Procedure 91a to dismiss the intervention because the Water Code did not authorize Waterkeeper to bring a private enforcement action. After the district court denied the motion, the companies petitioned for mandamus relief.

The Court’s Holding

The Fifteenth Court of Appeals conditionally granted mandamus and instructed the district court to dismiss Waterkeeper’s intervention. It first held that Rule 91a was an appropriate means of challenging the intervention: a statutory claim asserted without an available private cause of action has no basis in law, even though a Rule 60 motion to strike is also available.

The court then held that the Water Code does not create a private right to enforce the provisions at issue. Chapter 7 assigns enforcement authority to TCEQ, the Attorney General upon TCEQ’s request, specified local government officials, and—in a narrowly defined exception—persons affected by radioactive-material releases. Because Waterkeeper could not have brought the enforcement action in its own name, it lacked the justiciable interest required to intervene. The court rejected Waterkeeper’s reliance on Section 7.110, explaining that the provision concerns intervention to object to certain settlements, not authority to prosecute an enforcement case.

The court also concluded that appeal was inadequate. Requiring the companies to proceed against a private claimant on a cause of action the Legislature did not authorize would defeat their substantive right and improperly shift legislatively assigned enforcement power from executive officials to private parties through the judiciary.

Key Takeaways

  • Private parties may not prosecute Water Code enforcement claims merely because the statute does not expressly prohibit private actions; a private cause of action must be clearly implied in the statutory text.
  • A Rule 91a motion may challenge an intervenor’s statutory claims as having no basis in law, and a Rule 60 motion to strike is not the exclusive procedure.
  • Section 7.110 permits qualifying intervention in the settlement context but does not generally authorize private organizations to litigate the State’s enforcement claims.
  • Mandamus may be available when allowing an unauthorized private claim to proceed to trial would defeat a substantive statutory and separation-of-powers protection.

Why It Matters

The decision preserves TCEQ’s and the Attorney General’s control over Water Code enforcement, including decisions about penalties, remedies, settlement, and trial strategy. Environmental organizations may still report violations, gather evidence, submit public comments, and potentially object to covered settlements, but they cannot assume the government’s prosecutorial role without statutory authorization.

The opinion also confirms that Texas defendants may use Rule 91a—and, in exceptional circumstances, mandamus—to halt statutory claims brought by parties whom the Legislature did not authorize to sue.

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