IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60891

LUMINANT GENERATION COMPANY, L.L.C.; OAK GROVE 

MANAGEMENT COMPANY, L.L.C.; BIG BROWN POWER COMPANY, 

L.L.C.; LUMINANT MINING COMPANY, L.L.C.; SANDOW POWER 

COMPANY, L.L.C.; TEXAS ASSOCIATION OF BUSINESS; TEXAS 

ASSOCIATION OF MANUFACTURERS; TEXAS OIL & GAS 

ASSOCIATION; CHAMBER OF COMMERCE OF THE UNITED STATES 

OF AMERICA; STATE OF TEXAS,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Order on Motion to Amend and Enforce Judgment

Before BARKSDALE, GARZA, and ELROD, Circuit Judges.

PER CURIAM:

We previously issued an opinion in this case on March 26, 2012, vacating 

the EPA’s disapproval of three regulations promulgated by Texas pursuant to 

the Clean Air Act. Because the EPA had acted on Texas’s regulations more 

than three years after the time within which it was statutorily required to act, 

we instructed the EPA to approve or disapprove Texas’s regulations “most 

expeditiously” on remand. The EPA has not yet approved or disapproved of 

Texas’s regulations, and Texas has filed a motion to amend and enforce the 

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judgment. For the reasons that follow, we grant Texas’s motion. 

I.

As we explained in our prior opinion in this case, the Clean Air Act, 42 

U.S.C. § 7401 et seq., requires the EPA to identify air pollutants and to 

establish National Ambient Air Quality Standards (NAAQS). Luminant 

Generation Co., L.L.C. v. EPA, 675 F.3d 917, 921 (5th Cir. 2012). “The states, 

by contrast, bear the primary responsibility for implementing those 

standards.” Id. (internal quotation marks omitted). The states do so by 

adopting and administering State Implementation Plans (SIPs). Id. When a 

state revises its SIP, the EPA performs the “ministerial function of reviewing

SIPs for consistency with the Act’s requirements.” Id. (citing § 42 U.S.C. 

7410(k)(3)). After a state submits a revision to its SIP to the EPA for review, 

generally the EPA must approve or disapprove of the revision within 18

months. Id.

On February 1, 2006, Texas submitted three regulations to the EPA for 

approval as part of a revision to Texas’s SIP (Texas’s SIP revision). These three 

regulations, found in 30 Tex. Admin. Code §§ 116.610(a), 116.610(b), and 

116.617, establish the availability of a standardized permit for Texas entities 

that want to construct or modify certain pollution control projects governed by 

the Clean Air Act (the PCP Standard Permit).1 The purpose of these

standardized permits, as opposed to individual, case-by-case permits, is to 

authorize entities to construct or modify pollution control projects on an 

expedited basis. 

On September 15, 2010, more than three years after it was statutorily 

1 Texas’s PCP Standard Permit falls within the scope of what the EPA has labeled 

“minor” New Source Review (minor NSR), which is a subset of the permitting regime under 

the Clean Air Act that governs stationary sources that do not meet the threshold emission 

levels established for “major” NSR.

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required to approve or disapprove of Texas’s SIP revision, the EPA issued a 

final rule disapproving of Texas’s PCP Standard Permit. In the EPA’s view, 

Texas’s PCP Standard Permit did not comply with the Clean Air Act. 

We subsequently reviewed the EPA’s decision. Luminant Generation,

675 F.3d 917. We determined that the EPA had based its disapproval of 

Texas’s PCP Standard Permit on “purported nonconformity with three extrastatutory standards that the EPA created out of whole cloth” and that the EPA

otherwise had provided no legal basis for its decision. Id. at 932. Accordingly, 

we vacated the EPA’s disapproval of Texas’s PCP Standard Permit and 

remanded to allow the EPA to reevaluate its decision according to the proper 

Clean Air Act standards. Id. Although, by remanding, we chose to defer to the 

EPA’s reevaluation of Texas’s PCP Standard Permit, we explained that the 

EPA’s task on remand was likely not a difficult one: 

It is difficult to conceive, and the EPA has not suggested, how it 

could disapprove the PCP Standard Permit under the appropriate 

statutory factors. . . . In addition, we have already concluded that 

each of the EPA’s grounds for disapproval was unlawful. Finally, 

when pressed at oral argument, the EPA was unable to identify 

any legal deficiency with the PCP Standard Permit—other than its 

supposed failure to meet the EPA’s extra-statutory requirements 

that today we hold unlawful . . . .

Id. at 932 n.12.

In addition—and critically for present purposes—we instructed the EPA 

to “approve or disapprove [Texas’s PCP Standard Permit] most expeditiously”

on remand. Id. at 933 (emphasis added). Such an instruction was appropriate

in light of the EPA’s dilatory behavior:

Despite an eighteen-month statutory deadline, the EPA did not 

take action . . . until September 15, 2010. At that late date, the 

EPA disapproved the PCP Standard Permit—submitted four and 

a half years earlier—based on its purported nonconformity with 

three extra-statutory standards that the EPA created out of whole 

cloth. Moreover, the EPA did this in the context of a cooperative 

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federalism regime that affords sweeping discretion to the states to 

develop implementation plans and assigns to the EPA the narrow 

task of ensuring that a state plan meets the minimum 

requirements of the Act. 

Id. at 932. Our mandate issued on May 18, 2012.

More than 21 months have passed since our mandate issued in this case. 

The EPA has not yet approved or disapproved of Texas’s PCP Standard Permit.

As a result of this delay, Texas filed a motion requesting that we enforce the 

judgment in this case by giving the EPA six weeks, or alternatively ten weeks 

if the EPA chooses to take additional public comments, to approve or 

disapprove of Texas’s PCP Standard Permit. Texas argues that it is at a loss 

to understand how the EPA, while under our order to act most expeditiously, 

has been unable to complete the task before it. The EPA’s continuing failure 

to act, Texas argues, compromises its ability to effectively regulate the state’s 

air quality and creates uncertainty in its regulated community.

The EPA admits that it has not yet acted on Texas’s PCP Standard 

Permit. It nonetheless argues that its delay is reasonable. According to the 

EPA, it has “operated with a heavy workload of Clean Air Act-related duties” 

exacerbated by reductions in its budget and the recent shutdown of the federal 

government. Thus, the EPA requests that we deny Texas’s motion and offers

June 27, 2014, and November 26, 2014, as dates by which it could sign a 

proposed and final rule, respectively, regarding Texas’s PCP Standard Permit. 

The EPA says that it will agree to submit status reports every sixty days to 

explain its progress towards final action. Alternatively, the EPA requests that 

we refer the issue to our court mediation program to seek a mutually agreeable 

timeframe.

II.

Parties subject to the decision of a federal appellate court are “without 

power to do anything which is contrary to either the letter or spirit of the 

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mandate construed in the light of the opinion of [the] court deciding the case.” 

Am. Trucking Ass’ns v. ICC, 669 F.2d 957, 960 (5th Cir. 1982) (quoting City of 

Cleveland v. Fed. Power Comm’n, 561 F.2d 344, 346 (D.C. Cir. 1977)). 

Accordingly, if on remand an agency has not fully complied with our mandate, 

“we have ample authority to issue an order directing compliance with our 

mandate.” Nat’l Grain & Feed Ass’n, Inc. v. OSHA, 903 F.2d 308, 309 (5th Cir. 

1990). Neither party disputes our power to do so here. 

It is painfully apparent that the EPA has not complied or taken steps to 

comply with our clear mandate, which is approaching its second anniversary,

to “consider [Texas’s] regulations and approve or disapprove of them most 

expeditiously.” See Luminant Generation, 675 F.3d at 933. The EPA does not 

even attempt to argue otherwise and admits that it has not yet proposed or 

taken final agency action on Texas’s PCP Standard Permit. Therefore, the only 

question we must address is whether it is appropriate to direct the EPA to 

comply with our previously issued mandate. 

We begin by fully recognizing that “an administrative agency is entitled 

to considerable deference in establishing a timetable for completing its 

proceedings.” Nat’l Grain & Feed Ass’n, 903 F.2d at 310 (quoting Cutler v. 

Hayes, 818 F.2d 879, 896 (D.C. Cir. 1987)). An “agency has broad discretion to 

set its agenda and to first apply its limited resources to the regulatory tasks it 

deems most pressing.” Id. (quoting Cutler, 818 F.2d at 896). Nevertheless,

such discretion is not without bounds. Agencies may not unreasonably delay 

their decision-making, particularly when their delay injures those subject to 

their authority. In some instances, we must “set a clear end point to the 

regulatory snarl.” Pub. Citizen Health Research Grp. v. Brock, 823 F.2d 626, 

629 (D.C. Cir. 1987).

To evaluate whether it is appropriate to compel an agency to action, we 

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employ a case-by-case approach, considering five factors2: 

(1) the length of time that has elapsed since the agency came under 

a duty to act, and any prospect of early completion; (2) the presence 

of any legislative mandate, and the degree of discretion given the 

agency by Congress with respect to timing; (3) whether injury will 

likely result from avoidable delay; (4) the presence or absence of 

bad faith on the agency’s part; and (5) administrative necessity, 

the need to establish priorities given limited resources, and 

complexity of the task.

Nat’l Grain & Feed Ass’n, 903 F.2d at 310. If we determine that based on these 

factors relief is warranted, Texas refers to such relief as an order of 

enforcement, while the EPA refers to it as a writ of mandamus. Regardless of 

what label we give the relief sought, however, we apply the five factors listed 

above. See id. The weight of these factors establishes that the time is ripe to 

compel the EPA to action.

We first address the length of time that has elapsed since we issued our 

mandate and the reasonableness of the EPA’s delay. “There is no per se rule 

as to how long is too long to wait for agency action, but a reasonable time for 

agency action is typically counted in weeks or months, not years.” In re Am. 

Rivers and Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004) (internal 

quotation marks and citation omitted). 

Here, the EPA is counting in years. A November 26, 2014, deadline, as 

the EPA proposes, would allow it more than two and a half years to comply 

with our mandate. Such a deadline is unreasonable in our view, particularly 

because we directed the EPA to act “most expeditiously.” Indeed, we directed 

2 We recognize that these factors are derived from those used by the District of 

Columbia Circuit in evaluating the reasonableness of agency delay under the Administrative 

Procedure Act. See Cutler, 818 F.2d at 894–96; see also 5 U.S.C. § 706 (requiring courts to 

“compel agency action unlawfully withheld or unreasonably delayed”). As we have previously

done, we utilize them here for the purpose of evaluating when it is appropriate to order an 

agency to comply with our previously issued mandate. See Nat’l Grain & Feed Ass’n, 903 

F.2d at 310.

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the EPA to do so after recognizing that it had taken four and a half years to 

act on Texas’s SIP revision in the first instance. The EPA took that action only 

after a group of industry petitioners brought a mandatory-duty suit and the 

district court entered a consent decree requiring the EPA to approve or 

disapprove of Texas’s SIP revision.

The EPA’s failure to act in this case is all the more troubling in light of

the second factor we consider in assessing agency delay, “the presence of any 

legislative mandate, and the degree of discretion given the agency by Congress 

with respect to timing.” Nat’l Grain & Feed Ass’n, 903 F.2d at 310. The EPA 

attempts to skirt this issue by baldly asserting in a footnote that there is no 

legislatively mandated timeframe at issue here. We disagree. 

To be sure, the Clean Air Act does not specify a timeframe for the EPA 

to respond to our mandate. But as explained in our prior opinion in this case,

except for “a narrow exception not relevant here, the EPA must review and 

approve or disapprove a SIP revision within 18 months of submission.” 

Luminant Generation, 675 F.3d at 921 (citing 42 U.S.C. §§ 7410(k)(1)(B), 

7410(k)(2), and 7410(k)(3)). We disagree with the EPA’s apparent view that 

this statutory timeframe no longer has any bearing on its duty to act in a timely 

manner. Rather, “where Congress has provided a timetable or other indication 

of the speed with which it expects the agency to proceed in the enabling statute, 

that statutory scheme may supply content” in assessing the reasonableness of 

the agency’s delay. Telecomm. Research and Action Ctr. v. FCC, 750 F.2d 70, 

80 (D.C. Cir. 1984); see also Cutler, 818 F.2d at 897 (“The reasonableness of [an 

agency’s] delay must be judged in the context of the statute which authorizes 

the agency’s action.” (internal quotation marks omitted)). Here, the statutory

timeframe specified in the Clean Air Act confirms our view that the EPA has 

unreasonably delayed responding to our mandate. The EPA’s proposed 

November 26, 2014, deadline—which would give the EPA more than two and 

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a half years to comply with our mandate—ignores not only our direction to act 

“most expeditiously,” but also the 18-month timeframe Congress provided in 

the Clean Air Act.3 

We now turn to the third factor, “whether injury will likely result from 

avoidable delay.” Nat’l Grain & Feed Ass’n, 903 F.2d at 310. Texas argues 

that the EPA’s failure to approve or disapprove of its regulations harms the 

1,500 or so entities that hold PCP Standard Permits issued pursuant to Texas’s 

regulations. These entities, Texas argues, are in regulatory limbo, uncertain 

of the effectiveness their permits. More generally, Texas argues that the EPA’s 

delay interferes with its prerogative to improve its air quality. 

In response, the EPA argues that any injury resulting from its delay is 

minimal because Texas entities may apply for an alternative PCP standard 

permit that Texas has made available (the Alternative PCP Standard Permit). 

The Alternative PCP Standard Permit is similar, but not identical, to the PCP 

Standard Permit at issue in this case and is valid under Texas’s SIP.4 The 

EPA avers that it is not aware of any proposed pollution control projects that 

have not gone forward due to its delay.

3 The dissent takes the position that because we originally afforded the EPA some 

discretion in responding to our mandate, despite the 18-month statutory deadline, we are 

now curtailing that discretion by holding the EPA to a firm deadline. To the contrary, we 

think that the EPA has exceeded the extent of its discretion. Simply stated, we think that 

waiting two and a half years to take final action, as the EPA proposes, would not comply with 

our instruction to act “most expeditiously.” The 18-month statutory deadline reinforces our 

view that the EPA has unreasonably delayed taking action. Thus, rather than curtailing the 

discretion we originally afforded the EPA or otherwise asking the EPA to do something 

contrary to our previously issued mandate, we are clarifying our previously issued mandate 

and giving the EPA more specific instructions in that regard. See Am. Trucking Ass’ns, 669 

F.2d at 961. 4 Texas established the Alternative PCP Standard Permit subsequent to the EPA’s 

decision to disapprove of the PCP Standard Permit at issue in this case. Because the EPA 

approved the method for adopting the Alternative PCP Standard Permit in 2003, it is 

currently available for use for Texas entities. See Approval and Promulgation of 

Implementation Plans, 68 Fed. Reg. 64,543, 64,547 (Nov. 14, 2013).

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We agree with Texas’s position. As the EPA admits, the pollution control 

projects covered by Texas’s PCP Standard Permit are not currently authorized

under Texas’s SIP. Although the EPA is correct that Texas has made available 

the Alternative PCP Standard Permit for these entities, we see no reason to 

force them to jump through another regulatory hoop when the permits they 

now hold may in fact be valid under the Clean Air Act.5 In the meantime, these 

permit holders must endure continuing uncertainty regarding the legality of 

their pollution control projects. See Potomac Elec. Power Co. v. ICC, 702 F.2d 

1026, 1034 (D.C. Cir. 1983), supplemented, 705 F.2d 1343 (D.C. Cir. 1983)

(explaining that excessive agency delay “creates uncertainty for the parties, 

who must incorporate the potential effect of possible agency decisionmaking 

into future plans”).

Moreover, by arguing that the availability of the Alternative PCP 

Standard Permit is sufficient to prevent any non-minimal injury due to the 

EPA’s delay, the EPA is essentially offering its own assessment that Texas

does not need its PCP Standard Permit—regardless of whether it is lawful 

under the Clean Air Act—in order to implement the NAAQS effectively or 

otherwise to fulfill the state’s air quality needs. Such an argument is 

anathema to the “great flexibility” Texas possesses in implementing the Clean 

Air Act and the “narrow role to be played by the EPA.” See Fla. Power & Light 

Co. v. Costle, 650 F.2d 579, 587 (5th Cir. 1981); see also Michigan v. EPA, 268 

F.3d 1075, 1083 (D.C. Cir. 2001) (explaining that the EPA’s “overarching role 

is in setting standards, not in implementation”).

Fourth, we consider “the presence or absence of bad faith on the agency’s 

part.” Nat’l Grain & Feed Ass’n, 903 F.2d at 310. If we determine that an 

5 Indeed, in the eight or so years since Texas first submitted its SIP revision to the 

EPA for approval, the EPA has not suggested any lawful basis for disapproving Texas’s PCP 

Standard Permit. See Luminant Generation, 675 F.3d at 932 n.12.

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agency’s delay is the result of bad faith, we “should conclude that the delay is 

unreasonable.” Cutler, 818 F.2d at 898. In assessing this factor, we look to 

whether the agency is “making good-faith progress.” See Nat’l Grain & Feed 

Ass’n, 903 F.2d at 310. In National Grain & Feed, for example, we concluded 

that an order of immediate enforcement was not necessary because the agency 

was “working to accommodate the court’s requirements” and had “convinced 

us that [it was] making good-faith progress.” Id. at 309–10; see also Telecomm. 

Research and Action Ctr., 750 F.2d at 80 (retaining jurisdiction to receive 

progress reports but concluding that enforcement was not justified because the 

agency “assured [the court] that it [was] moving expeditiously”).

Here, in contrast, we see no evidence that the EPA is “making good-faith 

progress” to act on Texas’s PCP Standard Permit. According to the EPA, 

taking action on Texas’s PCP Standard Permit will require it to (1) conduct a 

technical review of its action, culminating in a Technical Support Document, 

(2) draft and publish a notice in the Federal Register, setting forth its proposed 

rule, (3) respond to any public comment on the proposal, and (4) publish a final 

rule. The EPA has not provided any evidence that it has even taken the first 

of these steps required to comply with our May 18, 2012, mandate.6 Thus, in 

no way has the EPA “convinced” us that it is currently progressing towards a 

final rule. See Nat’l Grain & Feed Ass’n, 903 F.2d at 310.

Nor are we persuaded by the EPA’s justification for its inaction. The 

EPA argues that until August 2013 Texas never told the EPA that Texas’s PCP 

6 Texas argues that the EPA can bypass the notice-and-comment procedure, and thus 

act sooner, by issuing a direct final rule pursuant to 5 U.S.C. § 553(b)(3)(B). It reasons that

a direct final rule is appropriate given the EPA’s long delay, the fact that the EPA has already 

developed a record relevant to the Texas’s SIP revision, that the EPA already provided an 

opportunity for notice and comment, and that the EPA has taken direct final action for even 

controversial rulemakings. Although a direct final rule may indeed be appropriate here, our 

decision does not turn on the availability of the direct final rule procedure.

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Standard Permit was a priority. This argument not only belies any notion that 

the EPA was making good-faith progress to comply with our May 2012 

mandate, it also shows complete disregard of our own directive to act “most 

expeditiously.” The EPA’s other justification, administrative necessity, is 

likewise not compelling, as we examine below.

Finally, the fifth factor we consider is the administrative necessity of the 

EPA’s delay, its need to establish priorities, and the complexity of the task. 

See Nat’l Grain & Feed Ass’n, 903 F.2d at 310. The EPA argues that its delay 

is administratively justifiable, explaining that as a practical matter it has 

limited resources and that it has been adversely affected by budget cuts, 

mandatory furloughs, and the recent government shutdown. It has provided 

what is essentially a to-do list, showing that it has placed a high priority on 

other matters important to Texas such as greenhouse gas permitting, 

responding to citizen petitions, and other judicially imposed orders.

We are not unsympathetic to the administrative constraints the EPA 

faces, as we must remember that an “agency has broad discretion to set its 

agenda and to first apply its limited resources to the regulatory tasks it deems 

most pressing.” Id. (quoting Cutler, 818 F.2d at 896). Here, however, the EPA 

has reached and exceeded the outer-limits of its discretion, and we are not 

persuaded that administrative necessity justifies further delay.7

Weighing heavily on our decision is that the EPA has not articulated any 

concern that the task before it is a difficult or complex one. See Nat’l Grain & 

Feed Ass’n, Inc., 903 F.2d at 310 (listing the “complexity of the task” as a factor 

to consider in assessing agency delay). We recognize that, before issuing a final 

7 We assume that several of the EPA’s obligations, which had December 2013 

deadlines, no longer compete with the EPA’s obligation in this case for EPA resources. 

Moreover, some of the EPA’s obligations, such as responding to our decision in Texas v. EPA, 

690 F.3d 670 (5th Cir. 2012), originated well after our mandate issued in this case.

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rule, the EPA must undertake the various procedural requirements imposed 

by the Administrative Procedure Act. Missing from the EPA’s argument, 

however, is any explanation as to how difficult these procedures may be or how 

long they might take.8 

Although there may be instances where the complexity of an issue 

demands leniency in evaluating agency delay, this is not such a case. Cf.

Grand Canyon Air Tour Coalition v. FAA, 154 F.3d 455, 476 (D.C. Cir. 1998)

(recognizing “the limits of [the court’s] institutional competence in the highly 

technical area at issue”). The EPA plays a “narrow statutory role in the SIP 

approval process,” and the task before it here appears to be a straightforward

one. Luminant Generation, 675 F.3d at 926. As we explained in our prior 

opinion, the EPA’s ministerial task on remand is to ensure that Texas’s 

regulations meet the “minimal” Clean Air Act requirements that govern SIP 

revisions to minor NSR.9 Id. at 932. Indeed, using the proper Clean Air Act 

standards, “[i]t is difficult to conceive, and the EPA has not suggested, how it 

could disapprove the PCP Standard Permit.” Id. at 932 n.12.

In any event, the EPA’s explanation for its delay is not sufficient to 

overcome the other factors we have considered, including that the EPA has 

allowed more than 21 months to pass without responding to our directive to 

act “most expeditiously” and that its proposed timeframe would extend its 

delay to upwards of two and a half years. See Cutler, 818 F.2d at 898 

(explaining that an agency’s justifications for delay “become less persuasive as 

8 We disagree with the dissent’s view that the EPA’s suggested deadlines of June 27, 

2014, and November 26, 2014, for a proposed and final action, respectively, adequately 

explain how long the EPA expects action in this case will take. 9 The minor NSR permitting program, unlike major NSR permitting, is not subject to 

particularly extensive or complex regulation. See Luminant Generation, 675 F.3d at 922. 

Indeed, “[t]he EPA has recognized that . . . ‘the [Clean Air] Act includes no specifics regarding 

the structure or functioning of minor NSR programs.’” Id. (quoting 74 Fed. Reg. 51,418, 

51,421 (Oct. 6, 2009)).

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delay progresses”). Importantly, the EPA has delayed action in the face of a 

statute that requires the EPA to take action—indeed, under a defined 

timeframe. See 42 U.S.C. §§ 7410(k)(1)(B), 7410(k)(2), and 7410(k)(3); cf. 

Sierra Club v. Gorsuch, 715 F.2d 653, 658 (D.C. Cir. 1983) (“Absent a precise 

statutory timetable . . . an agency’s control over the timetable of a rulemaking 

proceeding is entitled to considerable deference.” (emphasis added)).

III.

For the foregoing reasons and the protracted history of this case, we 

conclude that relief is warranted. We therefore order the EPA to issue a final 

rule regarding 30 Tex. Admin. Code §§ 116.610(a), 116.610(b), and 116.617 by 

May 19, 2014, which is the first business day following the second anniversary 

of our mandate in this case. See, e.g., In re Core Commc’ns, Inc., 531 F.3d 849, 

862 (D.C. Cir. 2008) (ordering the FCC to comply with the court’s order by a 

specific date); In re Am. Rivers and Idaho Rivers United, 372 F.3d at 420 

(ordering the FERC to act within 45 days of the court’s opinion). IT IS SO 

ORDERED.

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EMILIO M. GARZA, Circuit Judge, dissenting:

While I share my colleagues’ dissatisfaction with the EPA’s delay, I see 

no need in this case to resort to the “extraordinary” remedy of mandamus. 

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). 

Instead, I would retain jurisdiction and require regular status reports, as the 

EPA has proposed.

I find problematic the majority’s assessment of the five factors 

conditioning our authority to compel agency compliance through the vehicle of 

mandamus.1 The majority raises valid concerns in its discussion of the first 

two factors—the length of delay and the relevant legislative mandate. See 

Nat’l Grain & Feed Ass’n, Inc. v. O.S.H.A., 903 F.2d 308, 310 (5th Cir. 1990). 

But in the end, the order’s arbitrary deadline of May 19, 2014,2 is only six 

months earlier than the EPA’s estimated date of final action—November 26, 

2014—and will not prevent this delay from being “counted in . . . years.” Ante

at 6 (quoting In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C. 

Cir. 2004)). For such minimal gains, and (as explained below) on such tenuous 

grounds, I see no reason for curtailing the discretion that we originally afforded 

the EPA, knowing full well that the 18-month statutory timeframe had long 

since passed.

1 The majority curiously implies that the “label we give the relief sought” is 

immaterial. Ante at 6. However, our precedents teach that a writ of mandamus is the 

“appropriate remedy to enforce the judgment of an appellate court.” Am. Trucking Ass’ns, 

Inc. v. I.C.C., 669 F.2d 957, 960 (5th Cir. 1982). Indeed, the five-factor test applied by the 

majority is an analysis for considering the propriety of the writ’s issuance. See Telecomm. 

Research & Action Ctr. v. F.C.C., 750 F.2d 70, 79 (D.C. Cir. 1984) (“In the context of a claim 

of unreasonable delay, the first stage of judicial inquiry is to consider whether the agency’s 

delay is so egregious as to warrant mandamus.” (emphasis added)). Because a writ of 

mandamus is at issue, we must ensure that on balance, the five factors favor such a weighty 

remedy.

2 The majority’s only explanation for this choice of deadline is that it happens to be 

“the first business day following the second anniversary of our mandate in this case.” Ante 

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Regarding the third factor of injury, Texas has not offered sufficient proof 

of concrete injury to either regulated parties or the public. Nat’l Grain & Feed 

Ass’n, 903 F.2d at 310. Uncertainty inheres in any regulatory delay; a writ of 

mandamus should require more than Texas’s speculation about potential 

enforcement risk and weakened incentives for voluntary installation of 

pollution controls. See Cutler v. Hayes, 818 F.2d 879, 898 (D.C. Cir. 1987) 

(looking to “economic harm” and danger to “human lives”). Furthermore, I 

disagree with the order’s conclusion that the EPA is “essentially offering its 

own assessment that Texas does not need its PCP Standard Permit . . . in order 

to implement the NAAQS effectively . . . .” Ante at 9. The EPA’s reasonable 

position, rather, is that Texas’s need for the PCP Standard Permit is less 

pressing than other matters demanding EPA attention.

The majority’s consideration of the fourth factor of bad faith is similarly 

deficient and, furthermore, has potentially dangerous consequences. Nat’l 

Grain & Feed Ass’n, 903 F.2d at 310. Implicitly conceding the absence of bad 

faith, the majority turns the factor on its head by claiming that the absence of 

bad faith must be proven by evidence of good faith. The majority 

misunderstands cases in which we and the District of Columbia Circuit 

observed that the agency at issue had shown it was making “good-faith 

progress” or “moving expeditiously.” Ante at 10 (quoting Nat’l Grain & Feed 

Ass’n, 903 F.2d at 310, and Telecomm. Research & Action Ctr. v. F.C.C., 750 

F.2d 70, 80 (D.C. Cir. 1984)). Those cases establish merely that evidence of 

progress is sufficient to show a lack of bad faith, not that such evidence is 

necessary, and for good reason: The majority’s inversion of the bad faith factor 

has the potential to disrupt agency operations by creating an incentive for 

agency staff to take visible but meaningless actions on all pending matters, in 

order to avoid even the appearance of failing to make “good-faith progress.”

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No. 10-60891

Turning to the fifth and final factor of administrative necessity, the 

majority concedes that the EPA must manage numerous competing priorities. 

But curiously, the majority concludes that necessity is lacking for the sole 

reason that the EPA has not explained why this rulemaking presents “difficult 

or complex” issues and “how difficult . . . procedures [required by the 

Administrative Procedure Act] may be or how long they might take.” Ante at 

11–12. The EPA has stated that it “anticipates agency signature on a proposed 

action . . . by June 27, 2014, with signature on a final action by November 26, 

2014,”3 and that because the agency “expects adverse comments” in this 

contested matter, a direct final rule is not appropriate. The order declines to 

require direct final rulemaking, correctly recognizing that this decision should 

rest with the EPA. I accordingly see no basis for faulting the EPA’s adequate 

explanation of the necessity justifying delay.

Respectfully, I dissent from the order.

3 The majority faults the EPA for not adequately explaining how long action “in this 

case will take.” Ante at 12 n.8. In proposing its deadlines, the EPA has taken into account 

other competing priorities, as it must. The majority’s novel requirement that the EPA must 

provide a time estimate for this particular rulemaking in isolation is both unprecedented and

unpurposed. Even assuming arguendo that Texas has accurately estimated that the EPA 

can complete the required rulemaking in only “a fraction of [two months],” I see no practical 

value in having such information, unless we have the power to scrutinize, prioritize, and 

reorganize the EPA’s workload—tasks that the majority seems all too eager to undertake. 

See ante at 11 n.7.

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 Case: 10-60891 Document: 00512541102 Page: 16 Date Filed: 02/21/2014