In February 2024, the US Court of Appeals for the Fifth Circuit certified a question to the Supreme Court of Texas (SCOTX). The case involved a challenge to the issuance by the Texas Commission on Environmental Quality (TCEQ) of a Texas Clean Air Act (TCAA) permit to a liquefied natural gas (LNG) facility. TCEQ had previously issued a more stringent permit for a similar LNG facility. In opposing the challenge, TCEQ said the previously issued permit was not determinative because that facility was not yet operating.

Certified Question
The 5th Circuit certified this question: “Does the phrase ‘has proven to be operational’ in Texas’s definition of ‘best available control technology’ codified at Section 116.10(1) of the Texas Administrative Code require an air pollution control method to be currently operating under a permit issued by the Texas Commission on Environmental Quality, or does it refer to methods that TCEQ deems to be capable of operating in the future?”

Neither
SCOTX said the answer was “neither.” Although TCEQ’s regulations have a definition of “best available control technology” (BACT), the TCAA also defines “BACT.” While regulations may help the understanding of BACT, the regulations must always be consistent with the TCAA.

Previously Issued Permits Not Determinative
SCOTX examined TCAA’s definition of “BACT.” SCOTX summarized TCAA’s definition as “control technology that is currently available, technically practicable, and economically reasonable.” TCEQ may not, through regulation or policy, change TCAA’s definition of BACT.

Regarding the dispute before it, SCOTX acknowledged that previously issued permits could be helpful. However, “previously issued permits are not determinative of BACT in the way the power plant’s opponents have suggested in this case. A previously permitted emissions level for one facility is neither necessary nor sufficient to establish BACT for other, similar facilities.”

To see SCOTX’s opinion https://www.txcourts.gov/media/1460040/240116.pdf