Underground Storage of Hydrocarbons: State Preemption

摘要

In January 2005, Enterprise receives a permit from the Railroad Commission to create, operate and maintain an underground hydrocarbon storage facility partially within the city limits of Mont Belvieu. The City participates in the Commission hearings. In February 2005, Enterprise moves a drilling rig onto a site in order to access the storage cavern. The City issues a "cease and desist" order upon learning of the drilling operations since Enterprise has not received a City permit for such activities. The City then files this action seeking temporary and permanent injunctions and monetary damages. It asserts violations of municipal ordinances and that the drilling operations constitute a nuisance. Enterprise files a plea to the jurisdiction based on its claim that the trial court lacks subject matter jurisdiction to enjoin an activity permitted by the Commission. The trial court grants Enterprise's plea. Held: reversed and remanded. The Court of Appeals applies de novo review to the legal issue relating to the plea to the jurisdiction. In deciding whether die trial court has subject matter jurisdiction, the Court of Appeals considers only the plaintiff s pleadings. Enterprise argues that it did not raise a preemption issue when it filed its plea and therefore the Court of Appeals lacks jurisdiction to resolve whether or not the City's actions are preempted. The court concludes that while neither party used the term preemption at the district court, the underlying legal issue clearly involves preemption. The City's two pronged attack related to a claim of nuisance and a claim of ordinance violations.