{"id":43019,"date":"2025-11-10T10:09:06","date_gmt":"2025-11-10T10:09:06","guid":{"rendered":"https:\/\/www.newsbeep.com\/us-tx\/43019\/"},"modified":"2025-11-10T10:09:06","modified_gmt":"2025-11-10T10:09:06","slug":"5th-circuit-denies-texas-sip-appeal","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/us-tx\/43019\/","title":{"rendered":"5th Circuit Denies Texas SIP Appeal"},"content":{"rendered":"

The 5th Circuit Court of Appeals recently denied Texas\u2019s appeal in Texas v. EPA<\/a> in which the state denied that its emissions significantly contributed to downwind pollution in other states.<\/p>\n

The battle between Texas and the EPA began in 2012 when Texas submitted its state implementation plan (SIP) as regulated under the \u201cGood Neighbor\u201d requirement of the Clean Air Act (CAA), which requires upwind states to prevent interference with downwind states\u2019 ability to attain regulatory compliance with air quality standards set by the EPA.<\/p>\n

The SIP submitted by Texas asserted that no additional action was necessary by the state to prevent downwind air pollution.<\/p>\n

\u201cIn support, Texas submitted (1) two charts showing declining ozone statistics in nine metro areas, (2) one paragraph summarizing general wind patterns in Dallas and Houston, and (3) a map of 2010 ozone levels at monitors in Texas and adjacent states,\u201d according to the 5th Circuit ruling. \u201cTexas attached (4) several pages of ozone measurement data without any analysis.\u201d<\/p>\n

The SIP focused on areas that were located close to Texas\u2019s borders \u201cand did not address whether its emissions might interfere with maintenance of air quality standards in other states,\u201d notes legal database Justia<\/a>.<\/p>\n

\u201cAfter notice and comment, EPA reviewed this submission and rejected it on the grounds that the SIP did not adequately address the full set of statutory requirements and that the SIP\u2019s conclusions were unsupported by sufficient analysis in any case,\u201d the 5th Circuit ruling continues. \u201cAs additional support, EPA noted that data developed in a concurrent rulemaking showed that emissions in Texas did in fact contribute to violation of the federal ozone standards in other states.\u201d<\/p>\n

Although the EPA didn\u2019t approve Texas\u2019s initial SIP, the state made no revisions.<\/p>\n

\u201cSo in 2016, the EPA formally disapproved the SIP \u2018finding it failed to address statutory requirements, particularly by not evaluating impacts on maintenance areas and by relying on outdated control measures,\u2019\u201d energy news site Oklahoma Energy Today<\/a> explains.<\/p>\n

Texas, joined by several industry groups, petitioned the federal court to review the EPA\u2019s decision on the grounds that it was entitled to additional response and that the Agency\u2019s decision was arbitrary.<\/p>\n

\u201cThe Federal Appeals Court denied the petition and held that EPA\u2019s review complied with statutory and procedural requirements and the agency acted within its authority in disapproving the SIP,\u201d adds Oklahoma Energy Today.<\/p>\n

EPA SIP process<\/p>\n

The CAA requires the EPA to regulate specific air pollutants called \u201ccriteria pollutants,\u201d one of which is ozone. It also requires the EPA to set National Ambient Air Quality Standards (NAAQS) to set acceptable limits for these criteria pollutants. Periodic revisions to the NAAQS are required.<\/p>\n

States are required to submit SIPs within 3 years of an NAAQS revision to address their plan for compliance with the new limits. The Good Neighbor provision of the CAA \u201crequires that a plan \u2018contain adequate provisions\u2019 \u2018prohibiting\u2019 emissions of \u2018any air pollutant in amounts which will\u2019 \u2018contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any\u2019 NAAQS,\u201d notes the 5th Circuit ruling. \u201cTo review SIPs, EPA promulgates \u2018minimum criteria\u2019 \u2018limited\u2019 to ensuring that a SIP submission contains \u2018the information necessary to enable the Administrator to determine whether the plan submission complies with the provisions of this chapter.\u2019<\/p>\n

\u201cEPA first conducts a technical review within 60 days to determine whether the submission contains this information. EPA then has 12 months to conduct a substantive review to determine whether the SIP meets the requirements of the CAA, and to approve or disapprove the SIP accordingly. If EPA disapproves a SIP (or finds a submission technically incomplete) it must promulgate a Federal Implementation Plan (FIP) within two years.\u201d<\/p>\n

Texas didn\u2019t take advantage of updated modeling provided by the EPA in 2015.<\/p>\n

In December 2015, the EPA advised that it would finalize FIPs for states either that \u201cfailed to submit a complete good neighbor SIP\u201d or for which the EPA \u201cissue[d] a final rule disapproving [the states\u2019] good neighbor SIP.\u201d In April 2016, the EPA finally published a formal notice of proposed rulemaking in which the Agency proposed to disapprove the portion of Texas\u2019s SIP submission pertaining to its Good Neighbor obligations. The Agency, according to the 5th Circuit, identified several problems that required it to disapprove the submission:<\/p>\n

Texas didn\u2019t \u201cgive the \u2018interfere with maintenance\u2019 clause independent significance\u201d \u201cbecause its analysis did not attempt to evaluate the potential impact of Texas emissions on areas that are currently measuring clean data, but that may have issues maintaining that air quality.\u201d<\/p>\n

Additionally, \u201cTexas did not fully evaluate whether emissions from the state significantly contribute to nonattainment in other states\u201d because \u201cTexas limit[ed] its discussion of data only to areas designated nonattainment in states that are geographically closest to Texas.\u201d<\/p>\n

Finally, Texas\u2019s \u201c[a]nalysis of wind patterns, emissions data, and ambient monitoring data \u2026 d[id] not quantify the magnitude of impact from Texas emissions to downwind states.\u201d<\/p>\n

The EPA added that its own modeling of 2017 ozone levels provided \u201cthe most up-to-date information for assessing interstate transport of air pollution for the 2008 ozone NAAQS\u201d and \u201cshow[ed] that Texas emissions significantly contribute to ozone concentrations in areas of nonattainment and interfere with maintenance of the 2008 ozone NAAQS in other states.\u201d<\/p>\n

The Agency explained that it modeled air quality in 2017 because it was the last full year of data relevant to the attainment schedule for the 2008 ozone standard.<\/p>\n

Loper Bright application<\/p>\n

\u201cThe Fifth Circuit denied Texas\u2019s petition and upheld the EPA\u2019s federal implementation plan,\u201d states an analysis on the decision by the Americans for Prosperity (AFP) Foundation<\/a>. \u201cIn terms of how it relied on Loper Bright<\/a>, the Texas court acknowledged that the end of Chevron deference marked a paradigmatic shift in judicial methodology.\u201d<\/p>\n

\u201cUnder [Section] 706, \u2018agency interpretations of statutes\u2019 are reviewed without deference. [Yet sometimes] a statutory delegation of authority \u2018leaves [the] agency with flexibility,\u2019\u201d the 5th Circuit\u2019s ruling says.<\/p>\n

\u201cIn those instances, a court\u2019s job is to recognize a delegation of regulatory authority, fix the boundaries of the delegation, and \u2018ensure[] the agency has engaged in reasoned decision making,\u2019\u201d the AFP Foundation explains. \u201cOne of the open questions, after Loper Bright, is what it means for an agency interpretation of law to \u2018rest on factual premises within\u2019 an agency\u2019s \u2018expertise.\u2019\u201d<\/p>\n

In Loper Bright, the U.S. Supreme Court\u201csuggested that such expertise would have the \u2018power to persuade,\u2019 if not the \u2018power to control,\u2019 a court\u2019s judgment about the meaning of a statute.\u201d<\/p>\n

In the Texas v. EPA case, the court\u2019s ruling stated, \u201cA reviewing court must be \u2018most deferential\u2019 to the agency where \u2026 its decision is based upon its evaluation of complex scientific data within its technical expertise.\u201d<\/p>\n

Loper Bright makes clear that courts have an obligation to provide an independent review of statutory law even when the matter is complicated.<\/p>\n

\u201cWhether or how the Supreme Court might provide further guidance on this front is further complicated by dicta in Seven County v. Eagle County<\/a> that Baltimore Gas & Electric v. NRDC remains \u2018black-letter administrative law,\u2019\u201d the AFP Foundation adds. \u201cUnder the Baltimore Gas doctrine, \u2018when an agency makes \u2026 speculative assessments or predictive or scientific judgments \u2026 a reviewing court must be at its most deferential.\u2019 Only time will tell whether that approach can coexist with a robust reading of Loper Bright.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"The 5th Circuit Court of Appeals recently denied Texas\u2019s appeal in Texas v. EPA in which the state…\n","protected":false},"author":2,"featured_media":43020,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[25558,25559,25560,25561,25562,25563,27,29,28,25564],"class_list":["post-43019","post","type-post","status-publish","format-standard","has-post-thumbnail","category-texas","tag-5th-circuit-court-of-appeals","tag-clean-air-act","tag-downwind-pollution","tag-epa","tag-sip","tag-state-implementation-plan","tag-texas","tag-texas-headlines","tag-texas-news","tag-texas-vs-epa"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/posts\/43019","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/comments?post=43019"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/posts\/43019\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/media\/43020"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/media?parent=43019"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/categories?post=43019"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/tags?post=43019"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}