     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not be published and is not precedent except under the limited circumstances set forth in 5th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.
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                                       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.

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                                     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
