Supreme Court
Port Arthur Cmty. Action Network v. Tex. Comm’n on Env’t Quality
- Case number: 24-0116
- Legal category: Administrative Law
- Subtype: Judicial Review
- Set for oral argument: September 11, 2024
Case Summary
At issue in this certified question is the meaning of the phrase “has proven to be operational” in the Texas Commission on Environmental Quality’s definition of “best available control technology.”
Port Arthur LNG, LLC applied to the Commission for an air-quality permit associated with a proposed natural gas liquefaction plant and export terminal in Port Arthur, Texas. Texas law requires that regulated emitters use the best available control technology, defining that requirement as an air-pollution control method that “has proven to be operational, obtainable, and capable of reducing or eliminating emissions from the facility.” Port Arthur LNG’s application sought authorization to exceed applicable thresholds for nitrogen oxide, carbon monoxide, and particulate matter. After concluding that the application met all applicable permit requirements, including that the facility would use best available control technology for all applicable sources, the Commission issued a final order granting the permit.
The Port Arthur Community Action Network (PACAN), a not-for-profit community organization, sought judicial review of the permit in the U.S. Court of Appeals for the Fifth Circuit. PACAN argued that the lower-emission limits in a permit recently granted to another LNG facility represent the best available control technology and, thus, the Commission should have imposed those same limits on the Port Arthur facility or explained why it had not. The Commission argued that the limits for the other LNG facility are not best available control technology because they have never been achieved in operation—i.e., they are not “proven to be operational.” The Fifth Circuit initially vacated the Commission’s order on the ground that it did not employ the best available control technology for nitrogen oxide and carbon monoxide because the Commission had approved a different facility to use experimental emissions limitations, which could provide greater emissions reductions. On petitions for rehearing and rehearing en banc, the Fifth Circuit withdrew its opinion and certified the following question to the Court:
Does the phrase “has proven to be operational” in Texas’s definition of “best available control technology” codified at Section 116.10(1) of [Title 30 of] the Texas Administrative Code require an air pollution control method to be currently operating under a permit issued by the Texas Commission on Environmental Quality, or does it refer to methods that TCEQ deems to be capable of operating in the future?
The Court accepted the certified question.
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