Green Valley Special Utility District v. City of Schertz, No. 18-51092 (5th Cir. 2020)Annotate this Case
The Texas Public Utility Commission issued two orders decertifying territory from the certificate of convenience and necessity (CCN) issued to Green Valley for sewer (wastewater) service. Green Valley filed suit alleging that, because it had "provided or made available" sewer service, 7 U.S.C. 1926(b) protected that service from encroachment.
The Fifth Circuit granted en banc review and held that a utility has "provided or made available" service under section 1926(b) if it (1) has adequate facilities to provide service to the relevant area within a reasonable time after a request for service is made and (2) has the legal right to provide service. Therefore, the court overruled North Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910 (5th Cir. 1996) (per curiam). The court modified the dismissal of Green Valley's preemption claim as to TWC 13.254(a-1) to make it without prejudice and affirmed as modified; vacated the judgments invalidating the PUC's orders and remanded with instructions to dismiss those claims as barred by state sovereign immunity; vacated the remaining judgments related to the GVDC Order and remanded with instruction to dismiss those claims as moot; and vacated the judgments on Green Valley's section 1926(b) claims related to the Schertz Order and remanded for further proceedings.