On August 13, the Fifth Circuit Court of Appeals issued its decision in State of Texas v. EPA, No. 10-60614 (5th Cir. Aug. 13, 2012), affirming Texas’s State Implementation Plan (SIP) allowing for “flexible permits.” Under Texas’s Flexible Permit Program, a facility may make modifications without agency review so long as aggregate emissions do not exceed an emissions cap for the facility. The case could have broader implications across the country, if other courts adopt the Fifth Circuit’s reasoning to allow increased flexibility in state air permitting programs. In this case, the Court determined that if a SIP meets the statutory criteria of the Clean Air Act, then the EPA must approve the SIP. Rejection based on non-statutory preferences is not allowed.
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