United States Court of Appeals

Fifth Circuit

FILED

January 8, 2004

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________

No. 02-60017

_______________________________

BCCA APPEAL GROUP; NATIONAL RESOURCES DEFENSE COUNCIL;

ENVIRONMENTAL DEFENSE; DAVID MARRACK;JANE W. ELIOSEFF;

GALVESTON-HOUSTON ASSOCIATION FOR SMOG PREVENTION;

GALVESTON BAY CONSERVATION AND PRESERVATION ASSOCIATION;

SIERRA CLUB; AND BRAZORIA COUNTY, TEXAS,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY;

CHRISTINE T. WHITMAN, ADMINISTRATOR; AND

GREGG A. COOKE, ADMINISTRATOR, REGION 6,

Respondents,

v.

STATE OF TEXAS; HARRIS COUNTY, TEXAS;

BCCA APPEAL GROUP; ENVIRONMENTAL DEFENSE;

DAVID MARRACK;JANE W. ELIOSEFF; GALVESTONHOUSTON ASSOCIATION FOR SMOG PREVENTION;

GALVESTON BAY CONSERVATION AND PRESERVATION

ASSOCIATION; AND SIERRA CLUB,

Intervenors.

_____________________________________________________

On Petitions for Review of Final Rule

of the United States Environmental Protection Agency

______________________________________________________

ON PETITION FOR REHEARING EN BANC

(Opinion October 28, 2003, 5th Cir., 2003, ____F.3d____)
*

 The Honorable Jane A. Restani, Chief Judge, U.S. Court of International Trade, sitting by

designation.

Before DAVIS and BENAVIDES, Circuit Judges, and RESTANI,* Judge. 

DAVIS, Circuit Judge and RESTANI, Judge:

Treating the Petition for Rehearing En Banc of Environmental Defense, David Marrack,

Jane Elioseff, Galveston-Houston Association for Smog Prevention, and the Galveston Bay

Conservation and Preservation Association as a Petition for Panel Rehearing, we delete footnote

28 from the original panel opinion and substitute the following in its place:

Footnote 28 - 

Environmental Defense claims that the CAA’s specific mention of

enforceable commitments in two provisions precludes the EPA from fully

approving the Houston SIP under § 7410(a)(2)(A). To the contrary, however,

nothing in the CAA directly governs this issue. One provision, 42 U.S.C. §

7410(k)(4), gives EPA discretionary authority to conditionally approve a SIP

“based on a commitment of the State to adopt specific enforceable measures by a

date certain.” ED claims that this provision, which was enacted in 1990

amendments to the CAA, was meant to supplant EPA’s practice of fully approving

enforceable commitments under § 7410(a)(2)(A). There is nothing in the statute

or in the legislative history, however, to support this theory. Furthermore, the

cases Environmental Defense relies upon, which address conditional SIP approvals

or construe statutory provisions before the 1990 amendments, are inapposite. 

ED also claims that the EPA’s full approval of the Houston SIP’s

enforceable commitments was not authorized by 42 U.S.C. § 7511a(e)(5), which

provides that the EPA may “approve provisions of an implementation plan for an

extreme area which anticipate[s] development of new control techniques or

improvement of existing control technologies, and an attainment demonstration

based on such provisions, if the state demonstrates . . . that . . . the State has

submitted enforceable commitments to develop and adopt contingency measures to

be implemented . . . if the anticipated technologies do not achieve planned

reductions” (emphasis added). The court agrees that EPA’s action was not

authorized by this particular provision, because it governs extreme nonattainment

SIPs, not SIPs for severe nonattainment areas like Houston-Galveston. Contrary

to ED’s assertions, however, the fact that EPA’s action was not authorized by this

particular provision does not mean that EPA’s action was not in accordance with

law. 

The legislative history of the 1990 amendments of § 7410(a)(2)(A)

acknowledged EPA’s practice of fully approving SIPs that contained limited

enforceable commitments, yet Congress made no changes to that section
precluding the practice. See H.R. Rep. No. 101-490, pt. 1 at 218 (1990). In fact,

the 1990 amendments expanded EPA’s authority under § 7410(a)(2)(A) by adding

the “means” and “techniques” and “as . . . appropriate” language. This

strengthens, rather than limits, the statutory basis for EPA’s practice of fully

approving SIPs that contain enforceable commitments as part of an overall control

strategy. Finally, because § 7410(a)(2)(A) is silent on the issue of whether an

enforceable commitment is an “appropriate” “means” or “technique” to reach

attainment, EPA’s interpretation must be upheld if the court finds it a permissible

construction of the statute. 

In all other respects the Petition for Panel Rehearing is DENIED. 

No member of the panel nor judge in regular active service of the court having requested

that the court be polled on Rehearing En Banc (Fed. R. App. P. and 5th Cir. R. 35), the Petition

for Rehearing En Banc is DENIED.