United States Court of Appeals

for the Fifth Circuit ____________

No. 23-60234

____________

Sierra Club, 

Petitioner, 

versus

Louisiana Department of Environmental Quality; 

Roger W. Gingles, in his official capacity as Secretary, Louisiana 

Department of Environmental Quality, 

Respondents. 

______________________________

Petition for Review of an Order of the Civil Aeronautics Board

Agency Nos. 0560-00997-V0, PSD-LA-841

______________________________

Before Stewart, Duncan, and Engelhardt, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

This case involves a challenge to the pre-construction permits issued 

by the Louisiana Department of Environmental Quality (“LDEQ”) to 

Commonwealth LNG, LLC (“Commonwealth”) for its planned liquefied 

natural gas (“LNG”) export facility in Cameron Parish, Louisiana. 

Petitioner Sierra Club asks this Court to vacate LDEQ’s permitting decision 

as arbitrary and contrary to law, arguing that the facility’s emissions will 

exceed National Ambient Air Quality Standards (“NAAQS”) and that 

LDEQ failed to require Commonwealth to use the best available control 

United States Court of Appeals

Fifth Circuit

FILED

April 29, 2024

Lyle W. Cayce

Clerk

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technology (“BACT”) to limit those emissions. For the following reasons, 

we DENY Sierra Club’s petition for review and affirm LDEQ’s permitting 

decision.

I. Factual and Regulatory Background

Commonwealth, an LNG1 development company, plans to build an 

LNG liquefaction and export facility in Cameron Parish, Louisiana, on the 

west bank of the Calcasieu Ship Channel at the Gulf of Mexico. Before 

beginning construction on its project, Commonwealth must obtain various 

federal,2 state, and local authorizations. At issue here are authorizations 

issued by LDEQ following an analysis of the facility’s projected air 

emissions.

Commonwealth’s facility is projected to produce air emissions 

regulated by the Clean Air Act (“CAA”), which “establishes a 

comprehensive program for controlling and improving the nation’s air 

quality through state and federal regulation.” BCCA Appeal Grp. v. U.S. 

E.P.A., 355 F.3d 817, 821–22 (5th Cir. 2003), as amended on denial of reh’g and 

reh’g en banc (Jan. 8, 2004); 42 U.S.C. § 7401 et seq. Under the CAA, the 

States work in concert with the Environmental Protection Agency (“EPA”) 

to regulate air pollution emissions from stationary sources—the CAA thus 

operates as “[a]n experiment in cooperative federalism.” Luminant 

Generation Co. v. U.S. E.P.A., 675 F.3d 917, 921 (5th Cir. 2012) (citation 

_____________________

1 Liquified natural gas is natural gas that has been cooled to a liquid state for 

shipping and storage purposes.

2 On August 20, 2019, Commonwealth filed its application for approval of the 

proposed facility with the Federal Energy Regulatory Commission (“FERC”) pursuant to 

Section 3(a) of the Natural Gas Act. On September 9, 2022, FERC issued its extensive 

review of the proposed LNG project, and on November 17, 2022, FERC issued a final 

order approving the project. Sierra Club does not challenge FERC’s order in this appeal.

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omitted). This regulatory scheme is relatively simple: the EPA establishes 

NAAQS for specific air pollutants, and the States are responsible for 

implementing those standards. Id.; see 42 U.S.C. § 7407(a) (“Each State shall 

have the primary responsibility for assuring air quality within the entire 

geographic area comprising such State.”).

The NAAQS program requires the EPA to identify air pollutants 

that “may reasonably be anticipated to endanger public health or welfare.” 

42 U.S.C. § 7408(a)(1)(A). Then, the “EPA identif[ies] the maximum 

airborne concentration of a pollutant that the public health can tolerate, 

decrease[s] the concentration to provide an ‘adequate’ margin of safety, and 

set[s] the standard at that level.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 

457, 465 (2001). There are currently NAAQS for six pollutants: carbon 

monoxide (“CO”), lead, nitrogen dioxide (“NO2”), ozone, particulate 

matter (“PM10/PM2.5”), and sulfur dioxide (“SO2”). See generally 40 C.F.R. 

§§ 50.4–19.

To ensure air quality within its borders satisfies the NAAQS, a State 

must “submit[] an implementation plan . . . which will specify the manner in 

which national primary and secondary ambient air quality standards will be 

achieved and maintained.” 42 U.S.C. § 7407(a). The EPA is then “required 

to approve each State’s plan” if it is satisfied the State Implementation Plan 

(“SIP”) meets the CAA’s general conditions. Train v. Nat. Res. Def. 

Council, Inc., 421 U.S. 60, 66 (1975); 42 U.S.C. § 7410(k)(3). The EPA has 

approved Louisiana’s SIP. See 40 C.F.R. § 52.970(c).

To certify that potential new sources of pollution do not erode air 

quality, each State’s SIP “must include permitting programs for the 

construction or modification of stationary sources.” Luminant Generation 

Co., 675 F.3d at 922. Such permit programs are termed “New Source 

Review” programs. Id. For “attainment areas,” or areas where the air quality 

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is currently compliant with NAAQS, the permitting process is called the 

Prevention of Significant Deterioration (“PSD”) program. See generally

LAC 33:III:509. “The PSD requirements, enacted as part of 1977 

amendments to the [CAA], are designed to ensure that the air quality in 

attainment areas or areas that are already clean will not degrade.” Alaska 

Dep’t of Env’t Conservation v. E.P.A., 540 U.S. 461, 470 (2004) (internal 

citations and quotations omitted).

The PSD program requires new sources to obtain a specific 

preconstruction permit. 42 U.S.C. § 7475. To receive the permit, the owner 

or operator of the proposed facility must demonstrate “that emissions from 

construction or operation of such facility will not cause, or contribute to, air 

pollution in excess of” the NAAQS. Id. at § 7475(a)(3). The owner or 

operator must also show that “the proposed facility is subject to the best 

available control technology for each pollutant subject to regulation.” Id. at 

§ 7475(a)(4). In Louisiana, LDEQ conducts the PSD permitting process 

pursuant to Louisiana’s SIP.

3 See generally LAC 33:III:509. Before issuing a 

preconstruction permit, LDEQ must also provide public notice and an 

opportunity to comment on the permit. See 40 C.F.R. § 51.161(a).

In addition to the PSD permitting requirements, Congress also 

requires that each State adopt a Title V operating permit program, whose 

minimum requirements are set by the EPA. See generally LAC 33.III.507.B.

“Title V’s purpose is to provide each source a single permit that contains 

and consolidates all the information it needs to comply with the [CAA].” 

Env’t Integrity Project v. U.S. Env’t Prot. Agency, 969 F.3d 529, 536 (5th Cir. 

_____________________

3 LDEQ serves as the legislatively-created agency “vested with jurisdiction over 

matters affecting the regulation of the environment” in Louisiana, “including, but not 

limited to, the regulation of air quality.” St. James v. La. Dep’t of Env’t Quality, 2023-0578, 

2024 WL 207859, at *2 (La. App. 1 Cir. 1/19/24), reh’g denied (Feb. 15, 2024).

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2020). The EPA has approved Louisiana’s Title V permitting program. See

60 Fed. Reg. 47296-01.

On April 23, 2021, Commonwealth applied for the required PSD and 

Title V permits for its proposed LNG facility. LDEQ then began its twoyear review of the permit application. In February 2022, LDEQ issued a 

notice inviting public comment on the proposed project. Thereafter, on 

March 28, 2023, LDEQ issued the two permits to Commonwealth, along 

with its Basis for Decision and its Public Comments Response Summary. On 

April 27, 2023, Sierra Club timely filed this petition for review challenging 

the permitting decision.

II. Standard of Review

There is an apparent circuit split as to the appropriate standard of 

review for state agency actions. One view is that “[f]ederal courts reviewing 

state agency action afford the agencies the deference they would receive 

under state law.” Twp. of Bordentown v. FERC, 903 F.3d 234, 270 (3d Cir. 

2018). Both LDEQ and Commonwealth advocate for this standard of 

review. The other view is that the federal Administrative Procedure Act’s 

(“APA”) arbitrary and capricious review applies. See Appalachian Voices v. 

State Water Control Bd., 912 F.3d 746, 753 (4th Cir. 2019) (reviewing 

Virginia’s certification under the APA’s standards).

We agree with the Third Circuit and others that have adopted the first 

view, primarily because “the federal APA by its terms does not apply to 

states.” Town of Weymouth v. Mass. Dep’t of Env’t Prot., 961 F.3d 34, 41 (1st 

Cir.), on reh’g, 973 F.3d 143 (1st Cir. 2020); see 5 U.S.C.A. § 551(1). Further, 

a recent decision by this Court applied Texas state law, rather than the APA

standard, to review a Texas environmental agency’s permitting decision. See 

Port Arthur Cmty. Action Network v. Tex. Comm’n on Env’t Quality, 86 F.4th 

653 (5th Cir. 2023), opinion withdrawn and superseded on denial of reh’g, No. 

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22-60556, 2024 WL 655983 (5th Cir. Feb. 16, 2024) (noting the parties’ 

agreement that the Court “should apply the standard of review that would 

apply to [the agency] in Texas state courts”). Thus, we apply Louisiana law 

to review LDEQ’s permitting decision here.4

Under Louisiana law, a court “may reverse or modify” a state 

agency’s “decision if substantial rights of the appellant have been prejudiced 

because the administrative findings, inferences, conclusions, or decisions are 

. . . [a]rbitrary or capricious or characterized by abuse of discretion or clearly 

unwarranted exercise of discretion.” La. R.S. § 49:978.1(G)(5). “The test for 

determining whether an action was arbitrary or capricious is whether the 

action taken was ‘without reason.’” Save Our Hills v. La. Dep’t of Env’t 

Quality, 266 So.3d 916, 927 (La. App. 1 Cir. 11/5/18), writ denied, 267 So.3d 

87 (La. 3/18/19) (quoting Dow Chemical Co. La. Operations Complex Cellulose 

and Light Hydrocarbons Plants, Part 70 Air Permit Major Modifications and 

Emission v. Reduction Credits, 885 So.2d 5, 10 (La. App. 1 Cir. 9/17/04)).

“Reviewing courts should not reverse a substantive decision on its 

merits, unless it be shown that the actual balance of costs and benefits that 

was struck was arbitrary or clearly gave insufficient weight to environmental 

protection.” Save Ourselves, Inc. v. La. Env’t Control Comm’n, 452 So.2d 

1152, 1159 (La. 1984). “However, if the decision was reached procedurally, 

without individualized consideration and balancing of environmental factors 

conducted fairly and in good faith, it is the courts’ responsibility to reverse.” 

Id. “[T]he agency is required to make basic findings supported by evidence 

and ultimate findings which flow rationally from the basic findings; and it 

must articulate a rational connection between the facts found and the order 

_____________________

4 Regardless, because Louisiana’s law concerning agency review is substantially 

similar to the APA’s standard of review, both likely lead to the same result here.

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issued.” Id. “Although we may uphold a decision of less than ideal clarity if 

the agency’s path may reasonably be discerned, . . . we will not supply a 

finding from the evidence or a reasoned basis for the commission’s action 

that the commission has not found or given.” Id. at 1160.

III. Analysis 

Sierra Club, both during the public comment period and now on 

appeal, argues that LDEQ acted arbitrarily in its analysis of the potential 

NAAQS violations from the Commonwealth facility. Specifically, Sierra 

Club believes that LDEQ’s use of significant impact levels (“SILs”)

throughout the emissions analysis was improper. Sierra Club further asserts 

that LDEQ compounded its error by relying on AP-42 emission factors, 

“despite EPA’s caution against doing so.” Separately, Sierra Club argues 

that LDEQ failed to require BACT from Commonwealth with respect to 

NOx emissions from Commonwealth’s planned combustion turbines and 

oxidation system. Finally, Sierra Club asserts that LDEQ violated its public 

trustee duty under Louisiana law, which requires LDEQ “to evaluate and 

avoid adverse environmental impacts to the maximum extent possible.” In 

response, in addition to contesting each of these arguments, LDEQ

challenges this Court’s jurisdiction to hear Sierra Club’s claim.

a. Whether this Court has subject matter jurisdiction. 

LDEQ challenges this Court’s jurisdiction over the petition for 

review, arguing that Sierra Club’s claim arises under state law, not federal 

law, and lacks a sufficient hook to bring the claim into federal court. Both 

Sierra Club and Commonwealth, as intervenor, disagree, asserting instead 

that the unique interplay between the Natural Gas Act (“NGA”), the CAA, 

and the Louisiana SIP provides this Court with exclusive jurisdiction over 

the petition.

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First, the NGA. The NGA is “a comprehensive scheme of federal 

regulation” intended to address the sale and transmission of natural gas. N. 

Nat. Gas Co. v. State Corp. Comm’n of Kan., 372 U.S. 84, 91 (1963). As such, 

“[t]he NGA confers upon FERC [exclusive jurisdiction] over the 

transportation and sale of natural gas in interstate commerce for resale.” 

Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300–01 (1988). When 

Congress later passed the Energy Policy Act, it extended the reach of the 

NGA to the construction, expansion, and operation of LNG terminals, such 

as the one at issue here. See 15 U.S.C. § 717b(e)(1). The NGA thus strips 

States of the authority to act in this natural gas realm, except under three 

specifically enumerated statutes, one of which is the CAA. 15 U.S.C. 

§ 717b(d).

As noted above, the CAA “establishes a comprehensive program for 

controlling and improving the nation’s air quality through state and federal 

regulation.” BCCA Appeal Grp., 355 F.3d at 821–22. Under the CAA, the 

EPA formulates the NAAQS, while “States have primary responsibility for 

implementing the NAAQS by developing ‘State implementation plans.’” 

Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 308 (2014) (quoting 42 U.S.C. 

§ 7410). Once the EPA approves a particular State’s SIP, it can then 

“delegate to such State any authority . . . to implement and enforce [its] 

standards.” 42 U.S.C. § 7411(c)(1). Therefore, when States like Louisiana 

conduct a required review under the CAA for the issuance of permits, they 

are implementing federal law under a system of cooperative federalism. See, 

e.g., Ammex, Inc. v. Wenk, 936 F.3d 355, 361 (6th Cir. 2019) (concluding that 

Michigan’s fuel law, made in compliance with EPA’s standards, is federal 

law, based on “the way courts have consistently treated SIPs”).

The fact that SIPs have the force and effect of federal law has been 

recognized by every federal circuit court to address the issue, including this 

Circuit. See Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil Corp., 968 F.3d 357, 

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373 (5th Cir. 2020), as revised, (Aug. 3, 2020), and following remand, 47 F.4th 

408 (5th Cir. 2022), and reh’g en banc granted, vacated, 61 F.4th 1012 (5th Cir. 

2023) (noting that “when the EPA approves a SIP, it becomes federal 

law”); see also, e.g., Grp. Against Smog & Pollution, Inc. v. Shenango Inc., 810 

F.3d 116, 120 (3d Cir. 2016) (“Once the EPA approves the SIP, it becomes 

binding federal law.”); Indiana v. E.P.A., 796 F.3d 803, 806 (7th Cir. 2015) 

(“Once it is approved by EPA, a state rule embodied in a SIP becomes 

enforceable federal law.”). We decline to depart from our sister circuits on 

this issue. Thus, contrary to LDEQ’s arguments, when LDEQ issued the 

permit, it was acting pursuant to federal law, not merely state law.

Importantly, the NGA vests jurisdiction for judicial review of 

permitting decisions in “[t]he United States Court of Appeals for the circuit 

in which a facility . . . is proposed to be constructed, expanded, or operated.” 

15 U.S.C. § 717r(d)(1). Further, the NGA provides that such circuit court 

“shall have original and exclusive jurisdiction over any civil action for the 

review of an order or action of a Federal agency . . . or State administrative 

agency acting pursuant to Federal law.” Id. (emphasis added). Based on the 

clear language of the NGA, and the understanding that LDEQ acted under 

federal law in issuing the permits to Commonwealth, we have jurisdiction to 

review Sierra Club’s petition. See Town of Weymouth, 961 F.3d at 40–41

(reviewing State agency’s order acting pursuant to the CAA); Friends of 

Buckingham v. State Air Pollution Control Bd., 947 F.3d 68, 80 (4th Cir. 2020) 

(finding jurisdiction pursuant to the NGA to review the grant of a permit by 

the State board).

This Court recently decided the merits of a CAA challenge to a Texas 

Commission on Environmental Quality (“TCEQ”) permitting decision in 

Port Arthur Cmty. Action Network, supra. There, a not-for-profit 

environmental organization petitioned for review of TCEQ’s decision, 

pursuant to the federal CAA and the Texas Clean Air Act, to grant a PSD

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permit to an LNG plant developer. Port Arthur Cmty. Action Network, 86 

F.4th at 655–56.5 This Court, after finding that petitioner had standing to 

bring its claim, analyzed TCEQ’s permitting decision under Texas’s 

arbitrary and capricious standard, apparently finding no issue with the 

Court’s subject matter jurisdiction to hear the case. Id. at 659–60. Consistent 

with our previous decisions, we hold that this Court has subject matter 

jurisdiction over Sierra Club’s petition, and thus proceed to the merits.6

b. Whether LDEQ acted arbitrarily in using SILs to consider the 

Commonwealth permit application.

Sierra Club first argues, based on the CAA’s clear language, that 

neither the EPA nor State agencies may use SILs in permitting decisions. 

However, even if the Court finds that SILs are valid under the CAA, Sierra 

Club argues that LDEQ used them improperly with respect to NO2

emissions for the Commonwealth LNG project. As noted above, the owner 

or operator of a proposed facility must demonstrate “that emissions from 

construction or operation of such facility will not cause, or contribute to, air 

pollution in excess of” the NAAQS. 42 U.S.C. § 7475(a)(3). Sierra Club 

_____________________

5 On February 16, 2024, the panel in the Port Arthur case denied rehearing, 

withdrew its previous opinion, and issued a new opinion that certified a question to the 

Supreme Court of Texas concerning Texas’s definition of “best available control 

technology.” Port Arthur Cmty. Action Network v. Tex. Comm’n on Env’t Quality, No. 22-

60556, 2024 WL 655983, at *2 (5th Cir. Feb. 16, 2024). Because the certified question deals 

solely with the interpretation of Texas law, rather than the Court’s ability to review the 

permitting decision, the panel’s new opinion does not affect our jurisdiction analysis here.

6 LDEQ directs our attention to Shrimpers & Fishermen of RGV v. Tex. Comm’n on 

Env’t Quality, 968 F.3d 419, 427 (5th Cir. 2020) (Oldham, J., concurring), in which a 

concurring judge suggests that federal courts may lack—or perhaps should lack—

jurisdiction over petitions for review of LNG permits brought under the APA and NGA. 

This Court did not decide the jurisdiction issue in Shrimpers & Fishermen because it 

concluded that the petitioners did not have standing; therefore, the discussion of 

jurisdiction is not controlling here, nor does it persuade us to depart from the reasoning laid 

out above.

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argues that Commonwealth’s LNG facility will in fact cause or contribute to 

violations of the NAAQS, yet LDEQ issued the preconstruction permits 

anyway based on a fundamentally flawed analysis.

i. Whether the use of SILs complies with the CAA.

Sierra Club argues that LDEQ arbitrarily concluded that 

Commonwealth’s facility will not cause or contribute to a NAAQS violation 

by conducting a shortened Air Quality Analysis based on SILs. SILs are 

numerical values “below which the EPA considers a source to have an 

insignificant effect on ambient air quality.” Sierra Club v. E.P.A., 705 F.3d 

458, 461 (D.C. Cir. 2013). EPA guidance suggests that when a source 

demonstrates that its impact will not exceed the SIL, the source does not 

need to conduct the more extensive air quality analysis that is typically 

required. See id.; AR75:5. The use of SILs arose out of the EPA’s decadeslong belief that requiring extensive air modeling for every source is costly and 

overly burdensome, especially where the source is projected to emit 

insignificant amounts of pollution. AR75:5. “In 2010, EPA attempted to 

codify these uses of SILs,” but, after recognizing various flaws in the 

proposed SILs rule, the EPA asked the D.C. Circuit to vacate the rule. Sierra 

Club v. Env’t Prot. Agency, 955 F.3d 56, 59 (D.C. Cir. 2020)7

; see 40 C.F.R. 

§ 51.165(b)(2) (allowing for use of SILs to determine if a source would 

“exceed the following significance levels”). On remand in that case, the EPA

chose to issue non-binding guidance, rather than a modified rule, explaining 

_____________________

7 Notably, Sierra Club asked the D.C. Circuit to hold that the EPA could not use 

SILs at all in its air quality modeling. Sierra Club v. E.P.A., 705 F.3d 458, 464 (D.C. Cir. 

2013). However, that court declined to do so, instead holding that “[o]n remand the EPA

may promulgate regulations that do not include SILs or do include SILs that do not allow 

the construction or modification of a source to evade the requirements of the [CAA].” Id.

Contrary to Sierra Club’s suggestion, the D.C. Circuit has never held that SILs are per se 

invalid under the CAA.

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how state permitting authorities—like LDEQ—can rely on SILs in the 

PSD permitting process.

Based on this EPA guidance, LDEQ uses SILs to determine whether 

a permit applicant has satisfied “the requirement to demonstrate that they 

do not cause or contribute to a violation by showing that the ambient air 

quality impacts resulting from the proposed source’s emissions would be 

below these concentration levels.” AR75:5; LAC 33:III.509. For any given 

permit application, LDEQ conducts a “preliminary screening” whereby it 

identifies the projected emissions and compares them to the EPA’s SILs for 

each NAAQS. Only for those pollutants that exceed the SIL value does 

LDEQ conduct “refined modeling” to further analyze the projected effect 

on air quality. AR70:35. In sum, LDEQ uses the SILs as a “compliance 

demonstration tool” to simplify the air analysis and “help[] to reduce the 

burden on permitting authorities and permit applicants to conduct often 

time-consuming and resource-intensive air dispersion modeling” where such 

modeling is unnecessary to show compliance with the CAA. AR75:5. For the 

Commonwealth facility, LDEQ found that only four of the pollutants 

measured above the SILs and thus required refined modeling. AR70:35.

Sierra Club asserts that the EPA guidance and LDEQ’s use of SILs 

violate the CAA because the CAA “does not allow de minimis exceptions 

to an applicant’s responsibility to demonstrate that it will not cause or 

contribute to a NAAQS violation.” Sierra Club finds support for this 

argument in the “broad, sweeping language” of the CAA, which restricts 

any source that will “cause, or contribute to” a NAAQS violation. Sierra 

Club cites to Bluewater Network v. E.P.A., 370 F.3d 1, 13 (D.C. Cir. 2004), for 

the proposition that the word “contribute” as used in the CAA “has no 

inherent connotation as to the magnitude or importance of the relevant 

‘share’ in the effect; certainly it does not incorporate any ‘significance’ 

requirement.” Sierra Club further points out that, elsewhere in the CAA, 

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Congress modified the word “contribution” with the word “significant” but 

chose not to include that modifier in section 7475(a). See, e.g., 42 U.S.C. 

§ 7407(d)(4)(v) (excluding from nonattainment areas portions where a state 

demonstrates the sources “do not contribute significantly to a violation” of 

NAAQS); § 7426 (limiting applicability of interstate pollution notification 

requirements to new sources that “significantly contribute to levels of air 

pollution in excess of” NAAQS). Based on this statutory language, Sierra 

Club argues that neither the EPA nor LDEQ can alter the CAA’s 

requirements by limiting air quality analyses to only those sources that 

“significantly” contribute to NAAQS violations.

In response, LDEQ asserts that neither the CAA nor Louisiana’s 

SIP mandate any specific modeling analysis; rather, Congress gave the EPA

broad authority to determine how to demonstrate compliance with NAAQS. 

AR75:4. And under this broad authority, the EPA has recommended that the 

SIL screening process can suffice to make the necessary demonstration. See 

Sierra Club v. U.S. Env’t Prot. Agency, 939 F.3d 649, 686 (5th Cir. 2019) 

(“The EPA’s selection of modeling methods . . . is exactly the type of 

decision for which ‘significant deference’ is appropriate.”). LDEQ

explained in its Public Comments Response Summary that “[t]he air quality 

concentration levels that the EPA has identified as SILs do not function to 

exempt a source from making the demonstration required.” AR71:33. 

Instead, the SILs “provide a streamlined means” of showing compliance 

with the CAA—in other words, the SIL analysis itself is the required 

demonstration. AR71:33; AR91:14.

Further, in response to Sierra Club’s textual arguments, LDEQ

points out that the D.C. Circuit, upon which Sierra Club relies heavily, has 

often observed that the term “contribute” is ambiguous. See Catawba Cnty. 

v. E.P.A., 571 F.3d 20, 35 (D.C. Cir. 2009) (listing “contribute” as one of 

many words in a statute “suggest[ing] a congressional intent to leave 

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unanswered questions to an agency’s discretion and expertise”); Env’t Def. 

Fund, Inc. v. E.P.A., 82 F.3d 451, 459 (D.C. Cir.), amended sub nom. Env’t Def. 

Fund v. E.P.A., 92 F.3d 1209 (D.C. Cir. 1996). Thus, LDEQ asserts that the 

EPA’s determination that only “significant” contributions require extensive 

air analyses should be afforded deference as a reasonable reading of the word 

“contribute.” LDEQ also points to the label Congress chose for the PSD

program—“Prevention of Significant Deterioration”—as a helpful clue in 

determining Congressional intent. See 42 U.S.C. § 7470 et seq. (emphasis 

added). According to LDEQ, Congress gave the EPA “discretion to set the 

conditions for determining whether a PSD applicant has complied with” the 

CAA, and thus, the EPA was well within its authority in allowing state 

agencies like LDEQ to use SILs. AR91:8.

We agree with LDEQ and Commonwealth that the CAA does not 

specify how a permit applicant or permitting authority must make the 

required air quality demonstration. AR75:4. The plain language of the CAA

“authorizes the EPA to determine how the analysis is to be conducted, 

including the use of air quality models.” AR75:4; see 42 U.S.C. § 7475(e)(1) 

(“The review provided for in subsection (a) shall be preceded by an analysis 

in accordance with regulations of the Administrator, promulgated under this 

subsection . . .”). The plain language of the CAA does not, however, define 

“contribute,” a word that courts have consistently found to be ambiguous. 

See, e.g., Catawba Cnty., 571 F.3d at 35. The EPA’s interpretation of 

“contribute” to allow for SILs and a shortened air quality analysis for 

insignificant pollutants should therefore be given deference, where it 

reasonably accounts for both the goals of the CAA and the public’s interest 

in economic growth. See 42 U.S.C. § 7470 (explaining Congressional

declaration of purpose for the CAA); see also Groce v. Dep’t of Env’t Prot., 921 

A.2d 567, 578 (Pa. Commw. Ct. 2007) (analyzing identical arguments 

regarding SILs and finding that “Congress did not intend to prohibit any and 

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all economic growth based on infinitesimally small values calculated using 

highly developed and developing software”). LDEQ did not abuse its 

discretion in relying on reasonable EPA guidance to use SILs to calculate 

which pollutants will have an insignificant effect on the NAAQS.

Further, it is worth noting that, for the four pollutants found to be in 

excess of the SILs, LDEQ and Commonwealth went on to conduct a “full 

impact analysis” to assess compliance with NAAQS. AR70:35; AR71:33; 

AR90. This additional analysis modeled the facility’s projected pollutants 

together with background sources located off-site, stretching as far as twenty

kilometers away. AR90:4-228-229; AR10:20-21. After this analysis, only one 

pollutant exceeded the NAAQS: one-hour emissions of NO2. AR90:4-228-

229; AR10:41-44. Commonwealth and LDEQ then conducted a separate 

“source contribution analysis” for NO2, which is discussed further below. 

AR90:4-390; AR10:41. Looking at the air analyses as a whole, we cannot say 

that LDEQ and Commonwealth cut corners or arbitrarily ignored 

exceedances of NAAQS. Based on the extensive testing done, and the 

deference owed to the EPA in determining how that testing is to be done, we

affirm LDEQ’s use of SILs in its permitting decision.

ii. Whether LDEQ reasonably applied the SIL for NO2.

Sierra Club next argues that, even if SILs are valid under the CAA, 

LDEQ did not apply them properly with respect to NO2. As mentioned, 

LDEQ and Commonwealth conducted “refined modeling” for NO2

because the emission impacts were projected to be above the SILs. AR69:5. 

As shown in the refined modeling table in LDEQ’s report, for the one-hour 

averaging emissions period, the total NO2 concentration for the area was 

projected to be over the NAAQS. AR69:6. Sierra Club seizes on the results 

of this modeling to contend that “LDEQ could not issue Commonwealth’s 

PSD permit without requiring mitigation to offset Commonwealth’s NO2

Case: 23-60234 Document: 142-1 Page: 15 Date Filed: 04/29/2024
impacts.” Sierra Club made these exact arguments during the public 

comment period, and LDEQ responded by explaining in detail its reasoning 

for approving the Commonwealth permits despite the initial modeling. 

AR71:34–42.

First, LDEQ noted that “modeled exceedances of a NAAQS do not 

necessarily equate to actual exceedances of a NAAQS.” AR71:40. In fact, 

the modeling replicates a worst-case scenario, assuming the worst-case 

emissions from many industrial facilities in the area, combined with worstcase meteorological conditions. AR71:40. According to LDEQ, the 

modeling created a circumstance that was “improbable at best and, given the 

number of sources modeled, likely never to occur.” AR71:40. However, even 

in this worst-case scenario wherein all modeled sources emit their maximum 

pollution, that alone is still unlikely to cause an exceedance of NAAQS. This 

is because the exceedances are only expected when “background” 

concentration is added in, and according to LDEQ, this is a “highly 

conservative exercise” because “the actual measured ambient 

concentrations used to represent background are in fact representative and 

inclusive of contributions from the existing emission sources included in the 

model.” AR71:40–41. In other words, LDEQ’s predictions “double count” 

the effect of existing sources in the area. AR71:41.

The EPA has issued guidance for what a state permitting agency 

should do when “a cumulative impact analysis predicts a NAAQS

violation.” AR71:40. In this scenario, LDEQ may “compar[e] the proposed 

source’s modeled contribution to that violation to the corresponding SIL

value.” AR71:40. “If the modeled impact is below the recommended SIL

value at the violating receptor during the violation, the EPA believes this will 

be sufficient in most cases for a permitting authority to conclude that the 

source does not cause or contribute to (is not culpable for) the predicted 

violation.” AR71:40 (emphasis removed). LDEQ and Commonwealth 

Case: 23-60234 Document: 142-1 Page: 16 Date Filed: 04/29/2024
followed this guidance and found that the facility’s contribution to the 

exceedance of the one-hour NO2 NAAQS would be 0.07 μg/m3

, far below 

the SIL of 7.5 μg/m3

. AR71:42. Thus, LDEQ concluded that the facility’s 

potential contribution to any exceedance of NAAQS, as shown in the worstcase scenario modelling, would be negligible. AR71:42. As a result, LDEQ

found additional mitigation measures unnecessary. AR71:42.

Although Sierra Club asserts that LDEQ compounded the SILs error 

by relying on the SIL for NO2 twice—once in the preliminary screening, and 

once in the post-refined-modeling comparison—LDEQ followed relevant 

EPA guidance precisely, all while explaining its entire process. This does not 

appear to be a case where a State agency issued its decision “without 

reason.” Reduction Credits, 885 So.2d at 10. Considering the detailed 

modeling that LDEQ conducted and the vast amount of EPA guidance 

supporting its analysis, we affirm LDEQ’s use of SILs to approve the 

permits despite the initial modeled NO2 emissions.

iii. Whether LDEQ’s reliance on AP-42 factors was arbitrary.

Finally, Sierra Club argues that, validity of SILs aside, LDEQ’s use 

of AP-42 emissions factors “factually undermined” the SILs analysis, 

making the permitting decision arbitrary and contrary to law. The AP-42 

emissions factors are “representative value[s] that attempt[] to relate the 

quantity of a pollutant released to the atmosphere with an activity associated 

with the release of that pollutant.” EPA, Basic Information of Air Emissions 

Factors and Quantification, https://www.EPA.gov/air-emissions-factorsand-quantification/basic-information-air-emissions-factors-andquantification#About%20Emissions%20Factors (Nov. 30, 2023). The EPA

developed the AP-42 emissions factors for various combustion sources, so 

that new sources that have yet to be built—such as the Commonwealth 

facility—can look to the factors to determine projected operational 

Case: 23-60234 Document: 142-1 Page: 17 Date Filed: 04/29/2024
emissions. AR71:118. Here, LDEQ and Commonwealth used AP-42 factors 

as “default emission factors” to predict the likely pollutant outputs for the 

facility. AR71:118.

In contesting LDEQ’s analysis, Sierra Club emphasizes the EPA’s 

warning in a 2020 guidance letter that “AP-42 emission factors should only 

be used as a last resort” because they “are not likely to be accurate predictors 

of emissions from any one specific source.” AR37:195 (emphasis removed); 

AR71:114. However, LDEQ and Commonwealth point out that the EPA

only cautioned against AP-42 factors when used “in place of more 

representative source-specific emissions value[s].” AR71:114. LDEQ argues 

that AP-42 emissions factors are almost always required for projects like 

Commonwealth’s because there are not yet direct emissions to monitor; the 

facility has not been built, so it does not emit any measurable pollutants yet. 

Commonwealth makes the same argument, emphasizing that “this is a 

preconstruction permit and direct, site-specific emissions information is not 

available.” Considering the specific factual scenario here, and where the 

EPA has suggested that AP-42 emissions factors are suitable for this exact 

situation, it was not an abuse of discretion for LDEQ and Commonwealth to 

use AP-42 factors in their air quality analysis.

Even if relying on the AP-42 factors themselves was not arbitrary,

Sierra Club argues that LDEQ should have relied on the “maximum” 

factors, rather than the “average” factors, for its analysis. According to 

Sierra Club, record evidence demonstrates that relying on the “maximum” 

factors “would roughly triple Commonwealth’s potential to emit annual 

NOx pollution.” However, LDEQ considered this argument in its Basis for 

Decision and found that the extreme ends of the factor ranges are not likely 

to be representative of actual emissions for the Commonwealth project. 

AR71:107. For example, when responding to a comment that LDEQ should 

use the maximum factor for fugitive VOC emissions, LDEQ explained that 

Case: 23-60234 Document: 142-1 Page: 18 Date Filed: 04/29/2024
the use of the average factor was reasonable because it was not reasonable to 

“expect every component at any facility to be leaking at an extraordinarily 

high rate.” AR71:108. LDEQ did not act arbitrarily or contrary to law in 

using the average AP-42 emission factors, set by the EPA, to determine 

potential emissions from an LNG facility that has not yet been built.

c. Whether LDEQ acted arbitrarily in authorizing the project’s 

BACT. 

Sierra Club next argues that LDEQ failed to require BACT for NOx 

emitted from two sources of pollution in the facility: (1) Commonwealth’s 

combustion turbines; and (2) Commonwealth’s oxidation system. While 

acknowledging that “the applicant is not required to select the most effective 

control option or the lowest emission limit that option is capable of,” Sierra 

Club asserts that “the applicant must justify selecting anything other than 

the most protective available option.” Here, Sierra Club believes LDEQ

failed to require that justification from Commonwealth and instead excused 

incomplete emission analyses for BACT on the proposed LNG facility.

First, some background on the BACT requirement. A key aspect of 

the PSD permitting process requires the owner or operator of a new 

stationary source to apply the BACT for the source’s expected air 

pollutants—in simple terms, the facility must use the technology that best 

limits emissions. The CAA specifically requires LDEQ to determine that 

the proposed facility will be outfitted with the BACT for “each pollutant 

subject to regulation.” 42 U.S.C. § 7475(a)(4). The EPA has established a 

five-step, top-down approach for determining the BACT: (1) identify all 

available control technologies; (2) eliminate the technically infeasible 

options; (3) rank the remaining control technologies by effectiveness; (4) 

evaluate the total impacts of the most effective control technologies and 

document results; and (5) select the BACT. LAC 33:III:509; AR70:5–6. 

“The most effective control option not eliminated in step 4 is selected as 

Case: 23-60234 Document: 142-1 Page: 19 Date Filed: 04/29/2024
BACT.” AR70:6. While not a binding rule, LDEQ consistently uses this 

EPA guidance for its PSD permitting program.

“BACT determinations are intrinsically case-by-case 

determinations.” Port Arthur Cmty. Action Network, 86 F.4th at 663. The 

analysis “tak[es] into account energy, environmental, and economic impacts 

and other costs.” 40 C.F.R. § 52.21(b)(12). It follows that this analysis 

requires “expertise, experience, and procedural mechanisms” from 

LDEQ’s end to conduct as thorough of a review as possible. Zen-Noh Grain 

Corp. v. Consol. Env’t Mgmt., Inc., No. CIV.A. 12-1011, 2012 WL 6201871, at 

*10 (E.D. La. Dec. 12, 2012), amended on denial of reconsideration, No. CIV.A. 

12-1011, 2013 WL 3947186 (E.D. La. July 31, 2013).

In the present case, Sierra Club takes issue with two of LDEQ’s 

BACT determinations. The first deals with NOx emissions from 

Commonwealth’s nine gas-fired combustion turbines. Sierra Club asserts 

that the most effective technology to control emissions from these turbines 

is a selective catalytic reduction (“SCR”) system paired with dry low NOx 

burners. The main disagreement here centers around the approved 

numerical emission limit of 2.5 ppmvd, compared to Sierra Club’s proposed 

2.0 ppmvd limit based on its theory for increasing the system’s effectiveness. 

However, as LDEQ explained in its response to Sierra Club’s public 

comment on this issue, the effectiveness of the SCR system is “dependent 

on many variables” and in reality, operates at a wide range of efficiency. 

AR71:80. In other words, reducing the emissions by 0.5 ppmvd is not as 

simple as Sierra Club makes it sound. LDEQ also addressed Sierra Club’s 

assertion that many other facilities have achieved 2.0 ppmvd emission 

numbers, noting that these other facilities are not comparable to the 

Commonwealth project because they include “only combined cycle turbines 

located at electrical generation facilities.” AR71:83. Commonwealth’s 

facility will be built differently, in a different environment than other 

Case: 23-60234 Document: 142-1 Page: 20 Date Filed: 04/29/2024
facilities. See AR71:83. Ultimately, LDEQ concluded that the BACT

determination of 2.5 ppmvd for the turbines was “appropriate and 

reasonable” based on its thorough analysis. AR71:83.

The second determination concerns NOx emissions from 

Commonwealth’s oxidation system, which will use thermal oxidizers to 

remove impurities from the natural gas before it is liquefied. Sierra Club 

asserts that Commonwealth failed to consider a catalytic oxidizer, which 

could result in lower overall NOx emissions. In its response to public 

comments, however, LDEQ explained that, for a number of reasons, “the 

use of catalytic oxidizers rather than thermal oxidizers . . . is not technically 

feasible.” AR71:100. LDEQ highlighted the additional pollution that the 

catalytic oxidizer would emit and explained that Commonwealth would need 

to include additional machinery—that also could emit additional 

pollutants—to combat the side effects of the oxidizer. AR71:100. In sum, 

“[t]he addition of a scrubber to remove the trace constituents, a system to 

manage the scrubber waste stream, and a natural gas-fired heater to raise the 

temperature of the acid gas streams would needlessly add complexity to the 

system, would increase capital and operating costs, and would be an 

additional source of air emissions.” AR71:100. LDEQ argues that this 

analysis suffices to establish the BACT and that, contrary to Sierra Club’s 

assertions, cost estimates are not required as additional support for its 

conclusion.

As is evident from the administrative record, LDEQ carefully 

responded to and rejected each of Sierra Club’s proposed BACTs during the 

public comment period. While Sierra Club’s proposed control technologies 

may be effective at reducing emissions, Sierra Club has failed to show 

anything more than possible (and potentially infeasible) alternatives to 

LDEQ’s already reasonable decisions. See St. James, 2024 WL 207859, at 

*43–44 (holding that where the agency’s basis for decision reflected its 

Case: 23-60234 Document: 142-1 Page: 21 Date Filed: 04/29/2024
consideration of emissions, their impact on the environment, and BACT on 

those emissions, its determination was not arbitrary or capricious). Sierra 

Club’s desire for Commonwealth to use different technology at its facility 

does not mandate a conclusion that LDEQ acted arbitrarily in approving the 

BACT that Commonwealth plans to use.

Because LDEQ considered all relevant factors and articulated 

reasons for its decisions regarding these specific technologies, this Court will 

not disturb technical determinations made within LDEQ’s expertise. See 

Alaska Dep’t of Env’t Conservation, 540 U.S. at 490 (explaining that, for the 

purposes of BACT, the EPA disapproves a permit only in relatively rare 

circumstances where “a state agency’s BACT determination is not based on 

a reasoned analysis”) (quotation marks omitted); see also Maryland v. E.P.A., 

958 F.3d 1185, 1196 (D.C. Cir. 2020) (emphasizing that courts “give an 

extreme degree of deference to [an agency’s] evaluation of scientific data 

within its technical expertise”) (citation and internal quotation omitted)). 

We decline to wade into these hyper-technical waters and supplant LDEQ’s 

careful determinations, made with the benefit of time-consuming testing and 

extensive analysis.

d. Whether LDEQ violated Louisiana’s public trustee duty when 

considering the permit application.

Article IX § 1 of the Louisiana Constitution establishes “[a] public 

trust for the protection, conservation and replenishment of all natural 

resources of the state.” Save Ourselves, 452 So.2d at 1154. In conjunction with 

the constitutional standard, the Louisiana legislature codified a public trustee

duty to require an analysis of “[t]he potential and real adverse environmental 

effects” of any proposed project that may affect air quality. La. R.S. 

§ 30:2018(B)(1). Pursuant to the public trust doctrine, then, LDEQ must 

“determine that adverse environmental impacts have been minimized or 

avoided as much as possible consistently with the public welfare.” Save 

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Ourselves, 452 So.2d at 1157. Sierra Club argues that, by granting the 

preconstruction permits to Commonwealth here, LDEQ violated the public 

trust doctrine. Essentially, Sierra Club makes similar arguments concerning 

SILs and BACT detailed above, but asserts that LDEQ was required to go 

above and beyond its CAA-based review of these issues to comply with its 

public trustee duty.

LDEQ provides three main responses: (1) this Court does not have 

subject matter jurisdiction to review LDEQ’s compliance with state law that 

is not included in the State’s SIP; (2) the Natural Gas Act preempts the 

public trust doctrine8; and (3) regardless, LDEQ did not violate its public 

trustee duty. Commonwealth focuses primarily on argument (3), asserting 

that LDEQ’s decision complied with its public trustee duty.

As to LDEQ’s first argument, Sierra Club is correct that Louisiana’s 

public trust doctrine has been incorporated into the SIP and is properly 

before the Court now. In approving Louisiana’s SIP, the EPA specifically 

incorporated LAC 33:III.101 and 111, which in turn authorize LDEQ to issue

permits in accordance with La. R.S. § 30:2001 et seq. See LAC 33:III.101(A)–

(B). Because of the explicit reference to the Louisiana statute that contains 

the codified public trust doctrine, the doctrine acts as part of Louisiana’s 

SIP. See LAC 33:III.501.A; LAC 33:III.537.A.II.

Further, Louisiana courts have held that “all issues arising in the 

context of LDEQ permit applications are public trustee issues; to find that 

LDEQ acts as a public trustee only with respect to certain portions of its 

determinations . . . would be absurd.” City of Baton Rouge v. La. Dep’t of Env’t 

_____________________

8 LDEQ’s arguments concerning preemption seem to rely on a scenario where its 

permitting decision was consistent with the CAA and Louisiana’s SIP but inconsistent 

with the public trust doctrine. Because we ultimately find that LDEQ’s permitting 

decision was consistent with both, we do not address the alleged conflict between the two.

Case: 23-60234 Document: 142-1 Page: 23 Date Filed: 04/29/2024
Quality, 172 So.3d 13, 23 (La. App. 1 Cir. 4/28/15). In other words, LDEQ’s 

compliance with its public trustee duty is inextricably intertwined with its 

permitting analysis, and to separate the two would create confusion and 

possible conflicting conclusions between state and federal courts reviewing 

different aspects of the same permitting decisions. And, as a practical 

consideration, any argument by LDEQ that it was not required to abide by a 

public trustee duty is belied by LDEQ’s own permitting decision, which 

contains detailed analyses of its compliance with that duty. See AR71. For 

these reasons, Sierra Club’s arguments concerning the Louisiana public trust 

doctrine are properly before us on appeal.

As for the merits, LDEQ satisfied its public trustee duty here. In Save 

Ourselves, Inc. v. La. Env’t Control Comm’n, the Louisiana Supreme Court 

outlined the issues to be considered by the permit applicant and LDEQ

under the public trust doctrine. 452 So.2d at 1157. These issues are now 

known as the “IT Questions,” and LDEQ analyzes them as three separate 

inquiries: (1) whether “the potential and real adverse environmental effects 

of the proposed facility [have] been avoided to the maximum extent 

possible”; (2) whether “a cost benefit analysis of the environmental impact 

costs balanced against the social and economic benefits of the proposed 

facility demonstrate that the latter outweighs the former”; and (3) whether 

“there [are] alternative projects which would offer more protection to the 

environment than the proposed facility without unduly curtailing nonenvironmental benefits.” Matter of Rubicon, Inc., 670 So.2d 475, 482 (La. 

App. 1 Cir. 2/14/96) (explaining the “IT Decision” from Save Ourselves); see 

also Blackett v. La. Dep’t of Env’t Quality, 506 So.2d 749, 753–54 (La. Ct. App. 

1987), holding modified by Matter of Rubicon, Inc., 95-0108 (La. App. 1 Cir. 

2/14/96), 670 So.2d 475 (listing the IT Questions as five separate questions); 

AR71:1. These IT Questions have since been incorporated into the Louisiana 

Revised Statutes. See La. R.S. § 30:2018(B).

Case: 23-60234 Document: 142-1 Page: 24 Date Filed: 04/29/2024
LDEQ explicitly performed the IT Question analysis for the 

Commonwealth permits and set forth twenty-nine pages of reasoning in 

support. See, e.g., AR71:5-14 (analyzing the “concepts of alternative sites, 

alternative projects, and mitigation measures” in detail); AR71:15-20 

(analyzing “the potential and real adverse environmental impacts . . . to 

ensure they are minimized to the maximum extent possible”); and AR71:20-

28 (performing a “cost/benefit analysis” that addresses the “social and 

economic benefits of the proposed facility”). Much like its response to Sierra 

Club’s original SIL and BACT arguments, LDEQ answered each concern 

Sierra Club has raised with detailed, technical reasoning that demonstrates 

exactly why LDEQ chose to issue the preconstruction permits to 

Commonwealth. This certainly abides by the “rule of reasonableness” 

inherent in the public trust doctrine. See Save Ourselves, 452 So.2d at 1157.

While Sierra Club seems to argue that LDEQ must have gone beyond 

satisfaction of the CAA’s requirements to also satisfy the public trust 

doctrine, no court has ever suggested as much. And even if Sierra Club were 

correct, LDEQ did go beyond the CAA’s requirements by carefully 

considering each of the IT Questions included in the Louisiana statutes. See

AR71. Contrary to Sierra Club’s assertion, LDEQ did not rely solely on 

minimum permitting requirements, but instead conducted a thorough air 

emissions analysis and found that the benefits of the Commonwealth facility 

were “major, significant, and tangible” so as to outweigh the de minimis 

projected emissions. AR71:28. Unless “the actual balance of costs and 

benefits that was struck was arbitrary or clearly gave insufficient weight to 

environmental protection,” this Court should not substitute its own 

judgment for that of LDEQ. Save Ourselves, 452 So.2d at 1159. Sierra Club 

has not demonstrated that LDEQ’s balancing was unreasonable or arbitrary, 

and therefore, we hold that LDEQ satisfied its public trustee duty when 

issuing the Commonwealth permits.

Case: 23-60234 Document: 142-1 Page: 25 Date Filed: 04/29/2024
IV. Conclusion

For the foregoing reasons, we DENY Sierra Club’s petition for 

review and affirm LDEQ’s permitting decision.

Case: 23-60234 Document: 142-1 Page: 26 Date Filed: 04/29/2024