The Louisiana Department of Environmental Quality (LDEQ) issued permits to allow construction of a liquefied natural gas (LNG) facility. Sierra Club challenged the action in the US Court of Appeals for the 5th Circuit.

Jurisdiction and Standard of Review
LDEQ argued that the 5th Circuit did not have jurisdiction. The 5th Circuit disagreed; the federal Natural Gas Act allows for appeals to federal circuit courts of state agency permits issued to LNG facilities pursuant to federal law. LDEQ issued the permits pursuant to the federal Clean Air Act (CAA).

The 5th Circuit noted a split among the other circuits regarding the standard federal courts should use when reviewing state agency actions. The 4th Circuit applies federal law, while the 3rd Circuit applies the law of the relevant state. The 5th Circuit agreed with the 3rd but noted Louisiana’s standard is “substantially similar” to federal law and both standards would likely lead to the same result.

Rejection of Substantive Challenges
Sierra Club argued the evidence before LDEQ failed to demonstrate the facility would not cause a violation of a national ambient air quality standard. The 5th Circuit disagreed, holding that LDEQ’s assessment was entitled to deference and LDEQ properly followed EPA guidance.

Sierra Club alleged the permit does not require CAA mandated “best available control technology.” The 5th Circuit said Sierra Club “failed to show anything more than possible (and potentially infeasible) alternatives to LDEQ’s already reasonable decisions.”

Finally, the 5th Circuit rejected Sierra Club’s assertion that LDEQ failed to ensure adverse impacts will be “avoided as much as possible consistently with the public welfare.” LDEQ “conducted a thorough air emissions analysis” and determined the benefits “outweigh the de minimis projected emissions.”

To see the opinion https://www.ca5.uscourts.gov/opinions/pub/23/23-60234-CV0.pdf