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Texas v. United States Environmental Protection Agency

ELR Citation: 42 ELR 20173
Nos. 10-60614, (5th Cir., 08/13/2012)

The Fifth Circuit vacated EPA's disapproval of Texas's flexible permit program under the CAA. Texas submitted the program to EPA as a revision to its SIP and as a new feature of the state's minor new source review (NSR) regime. Under the program, modifications to facilities could be made without additional regulatory review as long as the emissions increase would not exceed an aggregate limit specified in the permit. More than a decade after Texas submitted its approval request, EPA disapproved the program. As a result, every facility with a flexible permit could face fines or other enforcement action irrespective of emissions levels. EPA argued that it disapproved the program because it might allow major sources to evade major NSR requirements. But Texas law affirmatively requires compliance with major NSR and does not, therefore, allow major NSR evasion. EPA also argued that its disapproval of the program was appropriate because the methodology for calculating flexible permit emissions caps lacks clarity and is not replicable, making it difficult to hold permit holders accountable for complying with their emissions caps. But EPA's objections to the emissions caps rely on standards not found in the CAA or its implementing regulations, and EPA provided no insight into how the emissions caps interfere with NAAQS or another applicable requirement of the CAA. The court also rejected EPA's assertion that the provisions for monitoring, recordkeeping, and reporting are inadequate because they confer too much discretion on the state's environmental agency director.