Fifth Circuit Slams Door on EPA Disapproval of Texas' Pollution Control Project Standard Permit Program, Sends Strong Message to EPA for Exceeding its Authority


On March 26, 2012, in Luminant, et al. v. Environmental Protection Agency, the United States Court of Appeals for the 5th Circuit issued its first opinion in a trilogy of cases reviewing EPA's delayed disapprovals of revisions to the Minor New Source Review rules in Texas' State Implementation Plan. Marking a significant victory for the State of Texas and the regulated community, and a severe blow to EPA's effort to micro-manage Texas' air program, the Court reversed EPA's Disapproval of the Texas Commission on Environmental Quality's standardized permit as it relates to Pollution Control Projects, finding "EPA overstepped the bounds of its narrow statutory role in the SIP approval process."

In Luminant, the 5th Circuit held that EPA's disapproval of Texas' PCP Standard Permit was arbitrary, capricious, and exceeded EPA's statutory authority because EPA "created out of whole cloth" three different and incorrect legal theories to justify its Disapproval. Specifically, the 5th Circuit concluded that EPA improperly reviewed the PCP Standard Permit for compliance with Texas law, because "it is beyond cavil that the EPA may consider only the requirements of the CAA when reviewing SIP submissions"; that EPA's "similar source" requirement was not "warranted by any applicable provision of the Act"; and that EPA's "replicability" requirement was "not a legal standard the Act authorized EPA to enforce."

Please see full alert below for more information.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jackson Walker | Attorney Advertising

Written by:


Jackson Walker on:

Popular Topics
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.