Summary
The United States Court of Appeals for the Fifth Circuit denied South Texas Environmental Justice Network’s petition for review of the Texas Commission on Environmental Quality’s denial of a challenge to a third construction-deadline extension for the Texas LNG terminal project. The court held that the organization had associational standing and concluded that the executive director had authority under Texas Administrative Code section 116.120 to grant the extension without following the procedural requirements of section 50.133. The court also addressed the validity of the underlying permit and related Clean Air Act and Natural Gas Act jurisdictional issues.
Topics
Practice areas
Questions Presented
- Whether South Texas Environmental Justice Network had associational standing to challenge TCEQ's denial of its motion to overturn the third construction-deadline extension.
- Whether the Fifth Circuit had original and exclusive jurisdiction over the petition under the Natural Gas Act.
- Whether Texas LNG's permit became void because TCEQ approved the second extension after the original construction deadline had passed.
- Whether the executive director was required to comply with the procedural requirements of Texas Administrative Code section 50.133 before granting the third extension.
- Whether Texas LNG satisfied the substantive requirements of Texas Administrative Code section 116.120(c) for a third construction-deadline extension.
- Whether substantial evidence supported TCEQ's determination that Texas LNG qualified for the third extension.
Holdings
- South Texas Environmental Justice Network had associational standing because its members established injury in fact, traceability, and redressability, and the remaining requirements for associational standing were satisfied.
- The executive director was authorized to grant Texas LNG's third construction-deadline extension under Texas Administrative Code section 116.120(b), and section 50.133's notice-and-comment prerequisites did not apply.
- Texas Administrative Code section 116.120(c) requires only that the permit holder previously received an extension under subsection (b)(1) and satisfies the expenditure condition in subsection (b)(2); it does not require a new demonstration of emissions compliance under subsection (b)'s parent text.
- Substantial evidence supported TCEQ's denial of the motion to overturn because Texas LNG established that it had received a litigation-related extension and had spent or committed to spend at least ten percent of the project's estimated cost, and the record also supported continued BACT and NAAQS compliance.
Key quotations
“We DENY the petition.” (2)
“We conclude the executive director was bound to comply only with section 116.120’s requirements, and she did.” (15)
“Accordingly, we DENY STEJN’s petition for review.” (22)
Factual background
Texas LNG operates a proposed liquid-natural-gas terminal project on a 625-acre site bordering the Brownsville Ship Channel and near areas used for recreation, aesthetic enjoyment, and religious practices. TCEQ issued Texas LNG minor-source New Source Review permits and later granted three extensions of the deadline to begin construction, the third extending the deadline to May 12, 2026. For the third extension, Texas LNG submitted evidence of a prior litigation-based extension and expenditures meeting the ten-percent requirement, along with updated BACT and emissions analyses. TCEQ concluded that the project remained compliant with applicable requirements and denied South Texas Environmental Justice Network's challenge by operation of law.
Procedural history
TCEQ granted Texas LNG a first construction extension in 2021, a second extension in 2023 based on litigation-related delay, and a third extension in July 2024. South Texas Environmental Justice Network moved to overturn the third extension and requested reconsideration, but TCEQ failed to issue a decision, resulting in denial by operation of law. The organization then petitioned the Fifth Circuit for review under the Natural Gas Act; Texas LNG intervened.