Addressing a petition from the Port Arthur Community Action Network (PACAN) to examine a decision by the Texas Commission on Environmental Quality (TCEQ), the Fifth Circuit Court of Appeals upheld a recent TCEQ determination. The case involved whether a proposed natural gas plant would be held to a Best Available Control Technology (BACT) standard based on unproven technology submitted by a similar facility in Texas.
In reviewing PACAN’s request, the Fifth Circuit Court found that the state’s definition of BACT did not include pollution control methods that were not currently operating. Below, the Texas energy lawyers from MehaffyWeber examine this issue in greater depth.
PACAN’s Petition for Review to the Fifth Circuit Court
In Port Arthur Community Action Network v. Texas Commission on Environmental Quality (filed in February 2024), the PACAN group asked the Court to examine whether the Texas definition of Best Available Control Technology (BACT) could include air pollution controls that were proposed but not yet in operation. PACAN had originally asked the Texas Commission on Environmental Quality (TCEQ) to revisit its decision regarding the Port Arthur Liquid Natural Gas facility’s application for a Clean Air Act Prevention of Significant Deterioration (PDS) permit.
PACAN based its request on the argument that a similar facility (the Rio Grande LNG plant) had proposed more restrictive controls and that Port Arthur LNG should be held to those BACT controls instead. It asked the TCEQ to justify its decision to let Port Arthur LNG deviate from its previous decision on tighter limits for Rio Grande LNG.
In response, TCEQ stated that Rio Grande LNG’s PDS request did “not satisfy the EPA’s or the TCEQ’s definition of BACT,” basing its response on the lack of “operational data to prove that their permitted limits are achievable.” When petitioned, the Fifth Circuit Court determined that the true question was whether the second facility’s proposed emission limits qualified as BACT in Texas’s legal definition.
Fifth Circuit Court Determines the Question at Hand
In deciding to accept PACAN’s petition for a hearing, the Fifth Circuit Court examined Texas’s definition of BACT, which requires pollution control methods to demonstrate the following:
- The method is proven to be operational.
- Limits are obtainable.
- The method can reduce or eliminate emissions.
- The method is based on experience and research.
Rio Grande submitted lower limits than the Port Arthur LNG, and TCEQ’s own guidance requires that it follow any decisions where they previously accepted methods as in line with the Texas Administrative Code’s definition of BACT. PACAN argued that TCEQ had failed to follow that guidance.
As a result, the Court took up the question of whether the term “proven to be operational” requires that a facility already operate with those methods or can it be satisfied by currently approved TCEQ permits.
The Circuit Court Certifies the Question for the Texas Supreme Court
The Fifth Circuit Court denied PACAN’s petition, finding that the question would require it to interpret an existing statute under the Texas Administrative Code. It also withdrew its previous decision and presented the certified question to the Texas Supreme Court. The Court’s response determined that the definition of BACT “does not extend to methods that TCEQ deems to be capable of operating in the future.”
It also stated that the limits permitted by one facility should not have any bearing on those permitted by another. Additionally, the Supreme Court indicated that, as TCEQ must issue permits for facilities that use technology that meets BACT minimums, a permit could potentially include methods that surpass what the Texas Health & Safety Code § 382.0518(a) defines as “at least as effective as the best available control technology, considering technical practicability and economic reasonableness.”
Therefore, the Fifth Circuit Court issued an August 2025 denial for PACAN’s demand that Port Arthur LNG be held to the lower limits proposed by Rio Grande LNG. In that decision, the Fifth Circuit Court found that, although PACAN lacked standing under Article III to challenge TCEQ’s PSD approval process, it did have standing based on supplied testimony of PACAN members discussing their concerns about the effect of pollution on the Port Arthur environment and citizens.
The Court Decisions Support a Reasonable Interpretation of BACT for Permits
Overall, the decisions issued by the Texas Supreme Court and Fifth Circuit Court uphold and further define the BACT standard for TCEQ’s issuance of PSD permits. They clarified that projected technology that may or may not live up to its suggested ability to limit pollution should not be held as a new standard for successive permit requests. Since Rio Grande LNG limits were lower without verifiable control methods, the onus is on Rio Grande LNG’s developers and operators to demonstrate their ability to meet the proposed limits without increasing the burden on Port Arthur LNG’s operators to reduce their limit goals.
For clients in this industry, these rulings support a measured and measurable approach to pollution control methods that clearly meet the BACT standards when applying for PSD permits. Specifically, companies should identify emissions sources such as oxidizers, engines, flares, and turbines.
Combustion turbines produce significant levels of pollution, and the Environmental Protection Agency (EPA) issued new standards in 2024 regarding their emissions. Further, the TCEQ offers emission standards for various airborne contaminants effective January 2025. LNG developers should examine these for applicability when seeking permits.
Consult With MehaffyWeber for Further Guidance on Energy Industry Concerns
Complying with the Clean Air Act, BACT standards, and other environmental protection legislation requires guidance from a law firm with a consistent understanding of changing events. By partnering with the energy lawyers at MehaffyWeber, you put experienced professionals in your corner, allowing us to review your plans against laws that may derail or enhance your growth.
Founded in 1946, we are committed to protecting our clients’ interests and dedicated to successful litigation on their behalf. We collaborate with other legal teams as needed to provide focused and skilled attention to each case. We combine hard work and traditional values with innovative solutions, so schedule your consultation today to learn more about what we can do for you.