Summary
This Fifth Circuit opinion reviews the Texas Commission on Environmental Quality's approval of emission limits for a new liquefied natural gas facility. The court had previously certified a question to the Texas Supreme Court asking whether Texas law permits using non-operational permitted emission limits to define "best available control technology." After the Texas Supreme Court clarified that such technology must already be proven operational, the Fifth Circuit denied the petitioner's request for review.
Topics
Practice areas
Questions Presented
- Whether PACAN had associational standing to challenge TCEQ's permit decision.
- Whether, under Texas law, a pollution-control method qualifies as best available control technology when it has been approved in a permit but is not yet operational.
- Whether TCEQ's approval of the Port Arthur LNG permit without adopting the lower Rio Grande LNG limits was arbitrary, capricious, unsupported by substantial evidence, or otherwise unlawful.
- Whether the concurrent application of Texas and federal BACT requirements undermines or conflicts with the federal Clean Air Act.
Holdings
- PACAN established associational standing because its member's declaration demonstrated a concrete interest in using and enjoying property and recreational areas near the proposed facility and reasonable concerns about injury from additional air pollution.
- A pollution-control method does not qualify as BACT under Texas law merely because TCEQ has issued a permit approving it; the method must already have been demonstrated through experience and research to be operational, obtainable, and capable of reducing or eliminating emissions.
- TCEQ did not act unlawfully by allowing the Port Arthur LNG facility's proposed 9 ppmvd NOx and 25 ppmvd CO limits instead of adopting the lower Rio Grande LNG limits.
- The concurrent application of federal and Texas BACT requirements does not, by itself, undermine or conflict with the federal Clean Air Act.
Key quotations
“Theoretical proof of a method’s operability in the future is not enough.” (at 9)
“For the reasons stated above, we DENY PACAN’s petition for review of the Commission’s decision.” (at 11)
Factual background
Port Arthur LNG sought a PSD permit for a proposed LNG plant and export terminal whose emissions potential exceeded the threshold for a major stationary source. For refrigeration compression turbines, it proposed limits of 9 ppmvd of NOx and 25 ppmvd of CO. PACAN relied on an approved but not-yet-constructed Rio Grande LNG permit amendment imposing lower limits of 5 ppmvd of NOx and 15 ppmvd of CO, but the record contained no operational data demonstrating that those limits had been achieved in practice.
Procedural history
TCEQ approved Port Arthur LNG's PSD permit application and rejected proposed amendments that would have imposed lower NOx and CO limits based on limits in an approved but not-yet-operational Rio Grande LNG permit. PACAN's motion for rehearing was overruled by operation of law, and PACAN timely petitioned the Fifth Circuit for review. The Fifth Circuit certified the controlling Texas-law question to the Texas Supreme Court, which clarified the meaning of BACT in 2025; the Fifth Circuit then denied the petition.