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Constitutional Law Click here for the full text of this decision FACTS: Defendant officials of the Texas Commission on Environmental Quality appeal 1. a preliminary injunction precluding them from considering a landfill permit application; and 2. the denial of their motion to dismiss. In 1996, TSP Development Limited, a Texas limited partnership, filed a permit application with the TCEQ requesting approval to construct a landfill facility capable of handling three classes of nonhazardous industrial solid waste, the most noxious of which is Class I. Plaintiffs, who are owners or occupiers of land within one mile of the proposed landfill, actively opposed the application via administrative proceedings before the State Office of Administrative Hearings, to which the matter had been referred for adjudication. In April 2002, plaintiffs sued, alleging violations of their rights under the Fifth and 14th Amendments. Contending that no ascertainable standards exist to guide the agency’s ultimate determination whether to approve the application, plaintiffs sought preliminary and permanent injunctions barring Robert Huston, the presiding officer of the TCEQ; Ralph Marquez and Kathleen White, TCEQ commission officers; Margaret Hoffman, the TCEQ Executive director; and Sheila Taylor, director of the SOAH (collectively “defendants” or “agency defendants”), from further considering the application until additional rules and regulations governing NISW landfills are promulgated. The agency defendants filed a motion to dismiss and a response in opposition to the application for preliminary injunction; the court denied the motion and issued the preliminary injunction. The agency defendants appeal the preliminary injunction under 28 U.S.C. �1292(a)(1), and they appeal the denial of their motion to dismiss pursuant to the district court’s certification of that order under �1292(b) and this court’s grant of permission to take an interlocutory appeal. HOLDING: Vacated; reversed and remanded. In Smith v. City of Brenham, 865 F.3d 662 (5th Cir. 1989), this court addressed similar claims: Plaintiffs alleged that the city’s attempts to obtain approval to operate a landfill constituted an uncompensated taking and violated their rights to due process. The court concluded that the due process challenge to landfill permitting procedures by adjacent property owners was “premature” where “[n]o deprivation of property . . . ha[d] yet occurred . . . [and] certainly [would] not occur at least until the permit process . . . ha[d] run its course.” As plaintiffs note, however, Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036 (5th Cir. 1998), limits Smith’s application here. In Hidden Oaks, the court held that procedural due process claims not arising from or ancillary to a takings claim are not subject to the ripeness constraints set forth in Williamson. Because the instant plaintiffs have not asserted a takings claim, the ripeness test articulated in Williamson Countyand applied in Smithdoes not control. Although plaintiffs’ claim need not satisfy the specific test applicable to takings claims, it still must comply with the principles governing ripeness determinations generally. Those principles direct courts “[to] dismiss a case for lack of ‘ripeness’ when the case is abstract or hypothetical.” New Orleans Pub. Serv. Inc. v. Council of New Orleans, 833 F.2d 583 (5th Cir. 1987). In making this determination, “[t]he key considerations are ‘the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’” “A case is generally ripe if any remaining questions are purely legal ones; conversely, a case is not ripe if further factual development is required.” Under these principles, this dispute is not ripe for judicial resolution. The plaintiffs contend they have been injured by TCEQ’s failure to afford them due process in its consideration of the landfill permit. The constitutional right to due process is not, however, an abstract right to hearings conducted according to fair procedural rules. Rather, it is the right not to be deprived of life, liberty or property without such procedural protections. Even assuming plaintiffs have identified constitutionally protected property interests that would be harmed by approval of the permit application, they have not suffered any deprivation, because the TCEQ permitting process has not yet run its course. The application may or may not be granted, and thus plaintiffs may or may not be harmed. Therefore, until the TCEQ issues the permit, this dispute remains “abstract and hypothetical” and thus unripe for judicial review. OPINION: Smith, J.; Smith, Dennis and Clement, JJ.

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