State of Texas, et al. v. EPA (Texas Flexible Federal Permit)

Case Updates

The Fifth Circuit vacated the EPA's disapproval of the Texas Flexible Permit program. The court emphasized that “States play a central role in the [Clean Air Act] regulatory structure.” Moreover, the court said “EPA is not satisfied with the language Texas has chosen, . . . but it cannot direct us to any provision of the CAA or the CAA's implementing regulations that empower it to disapprove a SIP revision on this basis.” According to the court, “A state's 'broad responsibility regarding the means' to achieve better air quality would be hollow indeed if the state were not even responsible for its own sentence structure.”

NCLC filed a petition for review of the EPA's decision to take away the authority of the state of Texas to issue flexible air quality permits to manufacturers, refiners, and other industrial facilities operating in the state. The Clean Air Act requires all states to develop a permitting plan to meet federal air quality standards. In compliance with the law, Texas launched a successful flexible permitting program which caps emissions from an entire facility rather than from each individual source. The Texas permitting program provides businesses with much-needed flexibility to reduce emissions by the most cost-effective means. The Chamber's lawsuit challenges a final rule, issued by the EPA last July, disapproving of the Texas permitting program and demanding that businesses submit their permit requests directly to the already overburdened Agency.