Port Arthur Cmty Actn Netwk v. TCEQ, No. 22-60556 (5th Cir. 2023)
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The Texas Commission on Environmental Quality (“TCEQ”) declined to impose certain emissions limits on a new natural gas facility that it had recently imposed on another such facility. In doing so, it contravened its policy of adhering to previously imposed emissions limits, but it did not adequately explain why.
The Fifth Circuit vacated the Commission’s order granting the emissions permit at issue and remanded. The court explained that in this case, the Commission rejected the ALJs’ proposed CO and NOX emissions limits because they were “not demonstrated to be achievable or proven to be operational, obtainable, and capable.” Even though those limits had been approved for Rio Grande LNG, there was no “operational data to prove” they were achievable. Here, the record is clear—the limits imposed on Port Arthur LNG are not “at least equivalent” to those imposed on Rio Grande LNG. Therefore, the Commission’s own policy directed it to consider Rio Grande LNG’s limits, even if Rio Grande LNG was not currently in operation. It therefore acted arbitrarily and capriciously under Texas law.
The court issued a subsequent related opinion or order on February 16, 2024.
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