IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60649

ENVIRONMENTAL INTEGRITY PROJECT; TEXAS ENVIRONMENTAL 

JUSTICE ADVOCACY SERVICES; COMMUNITY IN-POWER AND 

DEVELOPMENT ASSOCIATION; CITIZENS FOR ENVIRONMENTAL 

JUSTICE; AIR ALLIANCE HOUSTON; TEXAS CAMPAIGN FOR THE 

ENVIRONMENT; TEXAS IMPACT, 

 Petitioners

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, 

 Respondent

Petition for Review of an Order of the

Environmental Protection Agency

79 Fed. Reg. 40666

Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Under the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401–7671q, each state 

must create and administer a State Implementation Plan (“SIP”) designed to 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 20, 2015

Lyle W. Cayce

Clerk

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achieve National Ambient Air Quality Standards.1 The SIP must include a 

scheme for New Source Review (“NSR”), which governs pre-construction 

permits for new constructions or modifications to existing constructions. The 

CAA distinguishes between major and minor pollution sources based on a 

threshold amount of pollution; major sources are subject to much more 

stringent regulations.

In 1994, the State of Texas submitted to the Environmental Protection 

Agency (“EPA”) for approval a proposed SIP that provides for flexible permits 

for Minor NSR. Under the plan, an entity may obtain a flexible permit for 

emissions up to a specified aggregate limit below the major source threshold. 

Thereafter, the flexible permit holder may modify its facilities without further 

regulatory review provided emissions remain below the aggregate permit limit.

The State of Texas has always maintained that the flexible permit plan covers 

only Minor NSR and excludes Major NSR. Nevertheless, the EPA issued a rule 

disapproving the Texas SIP in 2010, 16 years after it was first submitted, based

in part on its determination that the plan, as written, could allow flexible 

permit holders to circumvent rules for Major NSR.

The State of Texas petitioned the Fifth Circuit for review. In a 2012

opinion, we concluded that the SIP, as written, covers only Minor NSR, and 

that all Major NSR (both for new constructions and for modifications) remains

covered by the more stringent Major NSR rules. Indeed, we concluded that the 

plan “affirmatively requires compliance with Major NSR” and that it therefore 

“does not, on its face, allow major sources to evade Major NSR.”2 Responding 

to the EPA’s specific contention that the flexible permit plan might allow 

permit holders to evade Major NSR for major source modification, we 

 

1 The background for this opinion is set out in Texas v. U.S. E.P.A., 690 F.3d 670 (5th 

Cir. 2012). 2 Id. at 678.

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explained, “Major sources cannot use a flexible permit to avoid Major NSR 

without violating the law.”3 In short, we concluded that the flexible permit plan

proposed by Texas covers only Minor NSR and categorically excludes Major 

NSR. Accordingly, we vacated the EPA’s final rule and remanded to the EPA 

for further consideration.

On remand, following a public comment period in which the parties to 

this proceeding participated, the EPA issued a final rule conditionally 

approving the SIP,4 relying primarily on this court’s 2012 opinion. Several 

citizen/environmental groups have brought this petition for review, asserting 

that the EPA’s approval of the SIP was “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law,” in violation of 5 U.S.C. 

§ 706(2)(A). Significantly, the petitioners do not argue that the 2012 Fifth 

Circuit opinion, on which the EPA relied, was incorrect or should be 

disregarded. We conclude that our earlier opinion controls here.

The petitioners have not materially distinguished their arguments from 

the EPA’s arguments in the earlier proceeding, which we already rejected. In 

essence, all of the petitioners’ arguments rest on the assumption that the SIP 

will somehow allow flexible permit holders to bypass Major NSR when making 

major modifications to existing constructions. Our 2012 opinion forecloses that

assumption. As we explained, the flexible permit plan by definition covers only

Minor NSR and affirmatively requires compliance with any applicable Major 

NSR. If, as the petitioners argue, some flexible permit holders attempt to evade 

Major NSR, they will be doing so not in accordance with the SIP but in violation 

of it.

 

3 Id. at 686.

4 The final rule was conditioned on Texas making certain minor changes irrelevant to

this proceeding, which Texas apparently has since completed.

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In short, the EPA raised virtually identical arguments in the earlier 

proceeding, and we categorically rejected them in our 2012 opinion. The EPA 

relied on our 2012 opinion on remand when it issued its final order 

conditionally approving the SIP. The petitioners do not challenge the 2012 

opinion and do not raise any arguments which are not foreclosed by that 

opinion. On this record, we cannot say the EPA’s final rule approving the SIP 

was “arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law”; to the contrary, it was explicitly in accordance with the 

law set out in our 2012 opinion. Thus, we deny the petition for review and 

uphold the EPA’s final rule approving the SIP.

DENIED.

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