Texas’ Affirmative Defense SIP Provisions: National Policy or Regional Action

Posted on June 23, 2020 by Paul Seals

Why is the legal challenge of EPA’s approval of the affirmative defense provisions in Texas’ state implementation plan (SIP) the subject of a venue battle?  Why did the Sierra Club and eight other environmental groups (Petitioners) sue EPA in the D.C. Circuit when they filed their lawsuit on April 7, 2020?  Why are EPA, Texas and industry intervenors fighting to dismiss the suit or have it transferred to the 5th Circuit?  The answers depend on the construction of the Clean Air Act (CAA) judicial review provisions.  Did EPA’s decision constitute a policy of national applicability or is the decision of local or regional applicability?

On February 7, 2020, EPA approved the withdrawal of Texas from EPA’s 2015 SIP call, which was related to the affirmative defense provisions in Texas’ SIP applicable to excess emissions that occur during startup, shutdown or malfunction.  EPA determined that affirmative defense provisions made the SIP substantially inadequate to meet the CAA requirements.  Texas was one of 17 states subject to the 2015 SIP call, which was based on EPA’s 2015 interpretation of the a 2014 D.C. Circuit decision in NRDC v. EPA, 749 F.3rd 1055, holding that affirmative defenses are unlawful in emission standards established under CAA Section 112.   

EPA’s approval of the withdrawal reinstates Texas’ affirmative defense provisions of the Texas SIP, which had been approved by EPA in 2010 and upheld by the 5th Circuit in 2013.  See Luminant Generation Co. v.  EPA, 714 F.3d 841.  The Court found that EPA’s interpretation of the Clean Air Act (CAA) to allow affirmative defenses in CAA Section 110 SIPs was a permissible interpretation.

In their lawsuit, the Petitioners claim that EPA is setting national policy regarding affirmative defenses and the EPA’s action regarding Texas’ SIP should be reviewed by the D.C. Circuit.  Texas responds that EPA’s action to withdraw of a single state from a SIP call issued to multiple states is locally or regionally applicable.  Accordingly, the D.C. Circuit should have no jurisdiction to review EPA’s action.

Is the Texas SIP decision nationwide in scope or effect?  Alternatively, does the EPA action reflect Texas-specific circumstances – a prior approval by EPA, which was upheld by the 5th Circuit?  Will the D.C. Circuit dismiss or transfer the litigation to the 5th Circuit?



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