BOCA CHICA BEACH (AP) – The Texas Supreme Court pondered how far the state can go in limiting access to a public beach during oral arguments Thursday in a case involving the closure of Boca Chica Beach for SpaceX’s rocket launches.
Rio Grande Valley environmentalist and indigenous groups are suing the Texas General Land Office and Cameron County over a law, passed in 2013, that allows some counties to temporarily close a beach for space flight activities.
The lawsuit is among multiple waged over the years between local advocates and SpaceX as the space exploration company has continued to expand its physical footprint and the frequency of its rocket launches in South Texas. Both, activists argue, have caused harm to the local environment and impeded the public’s ability to access a beach that has to be closed off for safety when SpaceX is conducting its test launches.
Last year, the Federal Aviation Administration authorized SpaceX to launch rockets up to 25 times per year, up from the five times per year the company was previously allowed. The launches cause a closure of the roughly 8-mile long beach that lies adjacent to the SpaceX launch pad.
Attorneys representing the groups — Save RGV, the Sierra Club and the Carrizo/Comecrudo Tribe of Texas — centered on the Open Beaches Amendment to the Texas Constitution that grants the public an unrestricted right to use public beaches.
The state, however, argued that the amendment did not guarantee every person access to every Gulf Coast beach at all times.
“It is a more limited right,” said Beth Klusmann, deputy solicitor general for the Texas Attorney General’s Office. “The question, of course, then is what are those limits.”
Klusmann argued that all property is subject to Texas’ valid exercise of police power and that the 2013 law — Texas House Bill 2623 — fell within that power because it is meant to protect people during rocket launches and furthers the state’s interest in the space industry.
The justices questioned Klusmann on what would constitute the state going too far in restricting access to the beach, to which she replied that a blanket elimination of access to the beach would be a violation of the Constitution.
Justice Evan A. Young asked if the state would be going too far if SpaceX launches necessitated a closure of the beach for 365 days out of the year.
“I think 365 days probably would exceed the police power in this case given the obvious interest of the people in enacting this amendment and putting it in the Constitution, but we’re nowhere near 365 days,” Klusmann said.
The court also asked why the use of “unrestricted right” in the Open Beaches Amendment, when it comes to the public’s access to the beach, should not be considered as a limit on Texas’ police power. Klusmann pointed to a previous court opinion that stated that unrestricted use of property did not mean it was not subject to the police power.
“I could give someone the unrestricted use of my backyard but the cities can still come in and say you can’t put a gas station there,” she said.
Attorney Marisa Perales, who represented the environmentalist and indigenous groups, was asked by the justices why this use of police power, through HB 2623, was invalid in her clients’ eyes.
Perales said the purpose of the Open Beaches Amendment was to provide an unrestricted right of access to the beach, though she acknowledged there are some limits.
“Where’s that line?” Justice Debra H. Lehrmann asked.
Perales couldn’t specify where that line would be, but said the restrictions set by the state through HB 2623 should not be allowed because the beach closures were being done to facilitate a hazardous activity that puts the public in danger in the first place.
But Lehrmann suggested there were other instances in which the government could be conducting dangerous activity that needed to be off limits to the public..
“So I don’t know that that’s a sufficient answer,” Lehrmann said.
Justice Young asked if SpaceX were to only conduct one launch per year, would her argument be the same. Perales said their argument, based on the plain language of the Constitution, would be the same.
Perales said the plain text would also prohibit state law enforcement from directing a training or simulation of a beach attack on the beach that excluded the public. However, she said that an analysis of whether that was a valid exercise of police power could apply, allowing that to go forward.
There were also questions from justices about whether private residents were allowed to file a legal challenge in this case.
An attorney representing Cameron County, James P. Allison, argued that the Open Beaches Act of the Texas Constitution did not create a private right of enforcement, meaning that private citizens should not be able to challenge the law.
Justice Jimmy Blacklock said there might be an argument that the lack of private enforcement renders the provision useless because it cannot be enforced. To that, Sullivan said that was incorrect because state agencies would still be allowed to file challenges in court.
However, Justice Jane N. Bland asked that if it is the state that is alleged to have violated the Constitution and the state is the only one with the right of enforcement, how would they remedy the state’s violation of the Constitution.
Allison did not directly answer the question, saying they could only apply the language of the Constitution.
Asked if local governments, like counties, could sue, Allison said they would have that power.
However, Perales pointed out in this case it was the county, along with the GLO, who were the ones impeding access to the beach and argued that a private citizen can sue the government to rectify a constitutional violation.
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