The Austin Court of Appeals issued an interesting ruling on whether the courts in Texas have the power to review an agency's refusal to engage in rulemaking. In Texas Commission on Environmental Quality v. Bonser-Latin, et al., the Court of Appeals agreed with TCEQ that the lower court had no jurisdiction over a complaint that the TCEQ unlawfully refused to promulgate new Greenhouse Gas rules.
The lower court eventually ruled for the TCEQ, but denied the agency's argument that the trial court had no jurisdiction under the Texas Administrative Procedure Act and Section 5.351 of the Water Code. The plaintiffs argued that the TCEQ was obliged under the "public trust doctrine" to engage in this rulemaking. The TCEQ responded that the "public trust doctrine" is displaced once the legislature acts--in this case, to enact the Texas Clean Air Act. The lower court, while ruling for the TCEQ, expressly rejected the agency's reasoning concerning the public trust doctrine.
In its ruling, the Court of Appeals held that no court has ever held that an agency's refusal to promulgate rules is reviewable by the courts, and it accordingly vacated the district court's judgment and dismissed the cause for want of subject-matter jurisdiction, and seemingly ended the conversation about the public trust doctrine in Texas.