Fifth Circuit Reverses EPA's Disapproval of Texas' Flexible Permit Program

Jackson Walker
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On August 13, 2012, the U.S. Court of Appeals for the Fifth Circuit rebuked the Environmental Protection Agency ("EPA") for its 2010 disapproval of a 1994 revision to Texas' State Implementation Plan ("SIP") establishing the Flexible Permit Program ("Flex Permit Program"). The Court held that EPA's actions were based "on demands for language and program features of the EPA's choosing, without basis in the Clean Air Act ("CAA") or its implementing regulations."

EPA disapproved Texas Flexible Permit Program for three reasons: (1) the Program might allow major sources to avoid Major New Source Review ("NSR"); (2) the provisions for monitoring, recordkeeping and reporting were inadequate; and (3) the methodology for calculating emissions caps lacked clarity and were not replicable. Judges Jolly and Southwick rejected each of these arguments with ease, while Judge Higginbotham dissented.

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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.

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