     Case: 14-60649      Document: 00513121598         Page: 1    Date Filed: 07/20/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                        Fifth Circuit

                                                                                     FILED
                                                                                  July 20, 2015
                                      No. 14-60649
                                                                                  Lyle W. Cayce
                                                                                       Clerk
ENVIRONMENTAL INTEGRITY PROJECT; TEXAS ENVIRONMENTAL
JUSTICE ADVOCACY SERVICES; COMMUNITY IN-POWER AND
DEVELOPMENT ASSOCIATION; CITIZENS FOR ENVIRONMENTAL
JUSTICE; AIR ALLIANCE HOUSTON; TEXAS CAMPAIGN FOR THE
ENVIRONMENT; TEXAS IMPACT,

              Petitioners

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

              Respondent




                       Petition for Review of an Order of the
                         Environmental Protection Agency
                                 79 Fed. Reg. 40666


Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
       Under the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401–7671q, each state
must create and administer a State Implementation Plan (“SIP”) designed to




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 14-60649
achieve National Ambient Air Quality Standards. 1 The SIP must include a
scheme for New Source Review (“NSR”), which governs pre-construction
permits for new constructions or modifications to existing constructions. The
CAA distinguishes between major and minor pollution sources based on a
threshold amount of pollution; major sources are subject to much more
stringent regulations.
       In 1994, the State of Texas submitted to the Environmental Protection
Agency (“EPA”) for approval a proposed SIP that provides for flexible permits
for Minor NSR. Under the plan, an entity may obtain a flexible permit for
emissions up to a specified aggregate limit below the major source threshold.
Thereafter, the flexible permit holder may modify its facilities without further
regulatory review provided emissions remain below the aggregate permit limit.
The State of Texas has always maintained that the flexible permit plan covers
only Minor NSR and excludes Major NSR. Nevertheless, the EPA issued a rule
disapproving the Texas SIP in 2010, 16 years after it was first submitted, based
in part on its determination that the plan, as written, could allow flexible
permit holders to circumvent rules for Major NSR.
       The State of Texas petitioned the Fifth Circuit for review. In a 2012
opinion, we concluded that the SIP, as written, covers only Minor NSR, and
that all Major NSR (both for new constructions and for modifications) remains
covered by the more stringent Major NSR rules. Indeed, we concluded that the
plan “affirmatively requires compliance with Major NSR” and that it therefore
“does not, on its face, allow major sources to evade Major NSR.” 2 Responding
to the EPA’s specific contention that the flexible permit plan might allow
permit holders to evade Major NSR for major source modification, we


       1 The background for this opinion is set out in Texas v. U.S. E.P.A., 690 F.3d 670 (5th
Cir. 2012).
       2 Id. at 678.

                                              2
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                                     No. 14-60649
explained, “Major sources cannot use a flexible permit to avoid Major NSR
without violating the law.” 3 In short, we concluded that the flexible permit plan
proposed by Texas covers only Minor NSR and categorically excludes Major
NSR. Accordingly, we vacated the EPA’s final rule and remanded to the EPA
for further consideration.
         On remand, following a public comment period in which the parties to
this proceeding participated, the EPA issued a final rule conditionally
approving the SIP, 4 relying primarily on this court’s 2012 opinion. Several
citizen/environmental groups have brought this petition for review, asserting
that the EPA’s approval of the SIP was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” in violation of 5 U.S.C.
§ 706(2)(A). Significantly, the petitioners do not argue that the 2012 Fifth
Circuit opinion, on which the EPA relied, was incorrect or should be
disregarded. We conclude that our earlier opinion controls here.
         The petitioners have not materially distinguished their arguments from
the EPA’s arguments in the earlier proceeding, which we already rejected. In
essence, all of the petitioners’ arguments rest on the assumption that the SIP
will somehow allow flexible permit holders to bypass Major NSR when making
major modifications to existing constructions. Our 2012 opinion forecloses that
assumption. As we explained, the flexible permit plan by definition covers only
Minor NSR and affirmatively requires compliance with any applicable Major
NSR. If, as the petitioners argue, some flexible permit holders attempt to evade
Major NSR, they will be doing so not in accordance with the SIP but in violation
of it.




         Id. at 686.
         3

         The final rule was conditioned on Texas making certain minor changes irrelevant to
         4

this proceeding, which Texas apparently has since completed.
                                            3
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                                No. 14-60649
      In short, the EPA raised virtually identical arguments in the earlier
proceeding, and we categorically rejected them in our 2012 opinion. The EPA
relied on our 2012 opinion on remand when it issued its final order
conditionally approving the SIP. The petitioners do not challenge the 2012
opinion and do not raise any arguments which are not foreclosed by that
opinion. On this record, we cannot say the EPA’s final rule approving the SIP
was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law”; to the contrary, it was explicitly in accordance with the
law set out in our 2012 opinion. Thus, we deny the petition for review and
uphold the EPA’s final rule approving the SIP.
      DENIED.




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