Case: 11-60158 Document: 00512031802 Page: 1 Date Filed: 10/24/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 24, 2012
No. 11-60158 Lyle W. Cayce
Summary Calendar Clerk
LUMINANT GENERATION COMPANY, L.L.C.; BIG BROWN POWER
COMPANY, L.L.C.; STATE OF TEXAS,
Petitioners
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Petition for Review of an Order of the
Environmental Protection Agency
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
This case involves consolidated petitions for review of the EPA’s
disapproval of an environmental regulation promulgated by the State of Texas.
For the reasons discussed below, we VACATE the EPA’s disapproval of the
regulation and REMAND to the EPA for further proceedings.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in 5th
Circuit Rule 47.5.4.
Case: 11-60158 Document: 00512031802 Page: 2 Date Filed: 10/24/2012
No. 11-60158
I. BACKGROUND
In 2011, the Environmental Protection Agency (“EPA” or “the Agency”)
issued a final rule partially approving and partially disapproving revisions of the
Texas State Implementation Plan (“SIP”)—a set of rules promulgated by the
State of Texas in fulfillment of its obligations under the Clean Air Act. See 42
U.S.C. § 7410; Approval and Promulgation of Air Quality Implementation Plans,
76 Fed. Reg. 1525 (Jan. 11, 2011) (to be codified at 40 C.F.R. pt. 52). At issue
here is the Agency’s disapproval of a provision within the SIP, 30 Tex. Admin.
Code § 116.911(a)(2), which requires owners and operators of certain electric
generating facilities to demonstrate that any newly proposed pollution control
methods comply with Texas’s Standard Permit for Pollution Control Projects
(“PCP”).1 Petitioners argue that the EPA had no legal basis for disapproving
section 116.911(a)(2), and that the EPA’s actions therefore must be held
“unlawful and set aside.” 5 U.S.C. § 706(2).
II. DISCUSSION
The EPA’s sole recorded basis for disapproving section 116.911(a)(2) was
that, in a prior ruling, the Agency had disapproved Texas’s Standard Permit for
PCPs. See 76 Fed. Reg. at 1527. In other words, the EPA disapproved section
116.911(a)(2) merely because that section mandated compliance with Texas’s
Standard Permit for PCPs, which the EPA had already disapproved. See id.
(“[W]e are disapproving the submitted 116.911(a)(2) because it refers to and
relies on the PCP [Standard Permit] that does not meet the applicable
1
Only the EPA’s disapproval of 30 Tex. Admin. Code § 116.911(a)(2) is currently before
the court. In a prior, related case, this court addressed other EPA actions pertaining to
Texas’s SIP. See Luminant Generation Co., L.L.C. v. EPA (Luminant I), 675 F.3d 917 (5th Cir.
2012). Because Luminant I thoroughly outlined the statutory and factual background related
to Texas’s SIP and Standard Permit for PCPs, and because the parties are familiar with the
issues in this case, those details are not repeated here.
2
Case: 11-60158 Document: 00512031802 Page: 3 Date Filed: 10/24/2012
No. 11-60158
requirements of the [Clean Air] Act, and was previously disapproved by the EPA
as a part of the Texas SIP.”).
In Luminant Generation Co., L.L.C. v. EPA (Luminant I), 675 F.3d 917,
921 (5th Cir. 2012), this court held that “the EPA had no legal basis on which to
disapprove” Texas’s Standard Permit for PCPs and, accordingly, vacated the
EPA’s ruling on that issue. The EPA has now informed the court that, having
had an opportunity to review Luminant I and the record in this case, the EPA
cannot reconcile its disapproval of section 116.911(a)(2) with this court’s holding
in Luminant I. The Agency concedes, then, that its disapproval of section
116.911(a)(2) was “not in accordance with law” and therefore must be vacated.
5 U.S.C. § 706(2)(A). We agree.
III. CONCLUSION
Accordingly, we VACATE the EPA’s disapproval of section 116.911(a)(2)
and REMAND for further proceedings consistent with this opinion and
Luminant I.2
2
Given the court’s disposition of this matter, the petitioners’ motion for summary
vacatur and remand, and the EPA’s cross-motion to remand without vacatur—which were
carried with the case—are DENIED as moot.
3