The Texas Supreme Court has agreed to respond to a certified question from the U.S. Fifth Circuit Court of Appeals in an important case involving the interpretation of “best available control technology” (BACT) for purposes of permitting facilities under the Clean Air Act.

Port Arthur Community Action Network v. Texas Commission on Environmental Quality; Jon Niermann In His Official Capacity as Chairperson of the Texas Commission on Environmental Quality (No. 22-60566; No. 24-0116; accepted Februrary 23, 2024) arose from a dispute over a permit issued by TCEQ to Port Arthur LNG to construct a facility. Port Arthur Community Action Network (PACAN) mounted an unsuccessful administrative challenge to the permit and subsequently petitioned the Fifth Circuit for review.

PACAN argues that TCEQ improperly issued a permit to Port Arthur LNG that deviates from the emissions limits imposed on a similar facility, Rio Grande LNG. The agency must therefore impose the same limits on both facilities or justify the deviation. TCEQ counters that since Rio Grande LNG has not completed construction of its facility, its emissions limits “‘do[] not satisfy the EPA’s or the TCEQ’s definition of BACT,’ because there is no ‘operational data to prove that their permitted limits are achievable.’ In other words, TCEQ concluided that Rio Grande LNG’s limits were not ‘proven to be operational’ because the plant was not completed.”

The Fifth Circuit determined that the case raises a novel question of Texas law upon which it could not make an Erieguess. The Court thus certified the question: “Does the phrase ‘has proven to be operational’ in Texas’s definition of ‘best available control technology’ codified at Section 116.10(1) of the Texas Administrative Code require an air pollution control method to be currently operating under a permit issued by the [TCEQ], or does it refer to methods that TCEQ deems to be capable of operating in the future?”

SCOTX has requested merits briefing, which is currently scheduled to be completed by April 30. It has not yet scheduled oral argument.

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