EPA Asks Fifth Circuit to Remand Texas and Oklahoma Regional Haze Plans
In a motion filed December 2, 2016, the U.S. Environmental Protection Agency (EPA) requested that the U.S. Court of Appeals for the Fifth Circuit remand parts of the Texas and Oklahoma regional haze plans that were disapproved by EPA back to EPA so that the Agency can reconsider its decision. Respondent's Motion for Partial Voluntary Remand, Texas, et al., v. EPA, No. 16-60118 (5th Cir. Dec. 2, 2016) (Motion). As noted in KEAG Bulletin No. 2015-80 dated December 16, 2015, on December 9, 2015, EPA issued the Final Rule disapproving portions of the Texas Regional Haze State Implementation Plan (SIP) submittal and the Oklahoma Regional Haze SIP submittal. See 81 Fed. Reg. 296 (Jan. 5, 2016). The Plans contain long‑term strategies for making reasonable progress toward improving visibility at Class I areas in each state. In the Final Rule, EPA partially approved the Texas SIP revision to meet certain requirements of the Regional Haze Program, but disapproved other provisions of the Texas SIP revision that EPA determined did not adequately address other requirements of the Regional Haze Program. The provisions EPA disapproved relate to reasonable progress, long‑term strategy, and the calculation of natural visible conditions. The Final Rule also disapproved the revision to the Oklahoma SIP, specifically portions related to reasonable progress and the establishment of reasonable progress goals. In both cases, EPA promulgated a Federal Implementation Plan (FIP) to address deficiencies in each Plan. The Fifth Circuit issued an Order on July 15, 2016, that stayed the Final Rule "pending the outcome of this Petition for Review." Order at 44.
In its Motion, EPA seeks voluntary remand of the Final Rule's disapprovals and FIPs so that it may reconsider those actions in light of the discussion regarding the likelihood of success on the merits set forth in the court's Order. EPA also explained that the remand was warranted because it desires to reconsider at least one issue raised by a petitioner (Luminant Generation Company, LLC) in a request it had submitted to EPA for administrative reconsideration of the Final Rule. EPA also requested that the court lift the stay pending appeal as to those portions of the Final Rule that approved portions of the Texas and Oklahoma SIPs, and which have not been challenged in the Petition before the court.
The parties pursued settlement negotiations following the court's stay Order, but they were unsuccessful. Given the court's determination in the stay Order that the petitioners would likely prevail, EPA determined that reconsideration of the Final Rule was warranted. Although not indicated in EPA's Motion, there is a high likelihood that the results of the presidential election were a contributing factor for EPA's seeking a remand of the Final Rule.