Monday, June 18, 2012

Texas Oil & Gas Association, Et Al v. U.S. EPA

Jun 15: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-60459. Petitions for Review of an Order of the Environmental Protection Agency. The Appeals Court determined that the opinion should not be published and is not precedent except under the limited circumstances.
    In the case, the BCCA Appeal Group, the State of Texas, the Texas Association of Manufacturers, and the Texas Oil & Gas Association (collectively BCCA) petition this Court for review of the Environmental Protection Agency's (EPA) final order disapproving a state implementation plan revision submitted by the State of Texas pursuant to the Clean Air Act. At issue is whether the EPA abused its discretion, acted arbitrarily and capriciously, and exceeded its statutory authority in denying the plan revision. The Appeals Court said, "We conclude that it did not and deny the petitions for review." One Justice issued a separate concurring opinion based on different reasoning from that of the majority.
    The majority Appeals Court said further, "BCCA asserts that the failure to cite an example of anyone attempting to use the plan to circumvent Major NSR thus far should prevent the EPA from suggesting that it could be used for such. The flaw in that argument is that the plan has not yet been approved by the EPA, a fact that in no way indicates that an improper attempt to circumvent Major NSR would somehow be prevented upon approval. The EPA's factual findings are entitled to substantial deference and should be upheld if they are supported by the administrative record, even if there are alternative findings supported by the record. See Arkansas v. Oklahoma, 503 U.S. 91, 113, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). The record in this matter establishes that the EPA considered the relevant factors in disapproving the program, that the action bears a rational relationship to the purpose of the statute, and that there is substantial evidence in the record to support it. Despite any interpretations to the contrary, the relevant portions of Senate Bill 1126 quoted previously herein support the EPA's finding that the revisions are not clearly limited to Minor NSR."
    Access the complete opinion and concurring opinion (click here). [#Air, #CA5]
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