September 22, 2025, opinions

Posted on by tadbartlett

Designated for publication

  • Texas v. U.S. Environmental Protection Agency, 16-60670, petition for review of EPA rule
    • Higginson, J. (Smith, Higginson, Douglas), Smith, J., dissenting; Clean Air Act, administrative law
    • Denying petition for review of EPA final rule rejecting Texas’s Clean Air Act State Implementation Plan under the “Good Neighbor” rule.
    • The Fifth Circuit denied Texas’s petition challenging EPA’s 2016 disapproval of Texas’s “Good Neighbor” SIP for the 2008 ozone NAAQS. Framing the problem with interstate air pollution, the court explained that the Clean Air Act’s Good Neighbor Provision requires upwind states to ensure their emissions do not significantly contribute to downwind nonattainment or interfere with maintenance of federal air quality standards. Texas’s 2012 SIP asserted no mitigating action was needed, relying on limited trend charts, a brief wind-pattern paragraph, a monitor map, and unanalyzed data. After notice and comment, EPA found the submission legally and analytically deficient and pointed to contemporaneous modeling showing Texas contributed to downwind ozone problems.
    • The court recapped the statutory scheme: EPA sets NAAQS for criteria pollutants like ozone, states submit SIPs within three years, and EPA conducts a two-stage review—first for completeness, then for substance—with authority to disapprove and, if needed, issue a federal implementation plan. Because transported emissions complicate causation, EPA historically uses modeling to apportion upwind responsibility, an approach the Supreme Court approved in EME Homer City. Against that backdrop, EPA concluded Texas’s filing failed to engage Good Neighbor requirements.
    • Texas moved to strike CSAPR Update materials from the administrative record, arguing EPA said that concurrent rulemaking was “outside the scope.” The Fifth Circuit rejected the motion, emphasizing APA review proceeds on the “whole record.” EPA properly docketed the materials and referenced the modeling only as up-to-date factual context, not as the basis of decision. Even if EPA had relied too much on those data, the remedy would be substantive review of the reasoning—not record surgery. The motion to strike was denied.
    • On procedural challenges, Texas argued EPA lost authority by missing the 12-month statutory deadline and by failing to give adequate notice. The court held that timing provisions without specified consequences don’t void later agency action; other remedies exist to address delay. Applying the APA’s rule of prejudicial error, the court found no prejudice: delay left Texas operating under its own “no-additional-controls” position, and EPA’s eventual reliance on clarified law and better data isn’t a cognizable harm. As to notice, EPA satisfied the APA, provided extensive opportunities to supplement with updated modeling, and was not required to furnish pre-specified metrics before Texas acted.
    • Turning to the merits, the court rejected Texas’s core claim that EPA lacked discretion to deem the SIP scientifically inadequate. Under § 7410(k)(3), EPA “shall approve” only plans that meet “all” applicable requirements, which places EPA “in the driver’s seat” to judge compliance. Cooperative federalism gives states leeway in choosing control measures, not in redefining statutory obligations. Particularly for the Good Neighbor Provision—aimed at interstate externalities—leaving each upwind state to unreviewable, divergent methodologies would undermine attainment and contradict congressional design.
    • EPA reasonably found two independent defects. First, Texas failed to give “interfere with maintenance” independent effect: its analysis focused on a few nearby nonattainment areas and didn’t assess currently clean areas at risk of future exceedances. EPA’s critique—rooted in technical expertise and deferentially reviewed—highlighted that Texas offered no quantified linkage between Texas emissions and maintenance receptors. Second, Texas improperly limited its nonattainment analysis to formally designated areas. The court upheld EPA’s interpretation of “nonattainment” as a factual condition of exceeding the NAAQS, not merely a designation status, and approved EPA’s use of 2017 as a reasonable projection year tied to the attainment schedule.
    • The court also upheld EPA’s reliance on updated modeling and the end of CAIR trading programs as corroborating support. Agencies should base decisions on the best available data and may consider new information from closely related rulemakings, especially where approving a SIP on outdated premises would itself be arbitrary. Allegations that EPA predetermined disapproval to force Texas into a FIP failed; the record showed EPA independently assessed Texas’s SIP on its own statutory shortcomings and used CSAPR Update analyses only as additional evidence.
    • Having rejected the motion to strike, the procedural attacks, and the substantive challenges, the Fifth Circuit concluded EPA’s disapproval was neither arbitrary nor capricious and complied with law. The petition for review was therefore denied.
    • Judge Smith dissented from the 42-page majority opinion with a one-page dissent, contending that the petition for review should be resolved simply by vacating the EPA’s Final Disapproval under 5 U.S.C. § 706(2)(D), because the agency failed to meet the Clean Air Act’s clear 12-month statutory deadline for reviewing Texas’s State Implementation Plan (SIP). Instead of acting on time, EPA delayed for 44 months, using that period to develop new data and prepare its own Federal Implementation Plan, which it then relied upon to disapprove Texas’s SIP. The dissent stressed that reliance on post-deadline data exceeded statutory authority and was arbitrary and capricious, urging the court to adopt a bright-line rule that enforces Congress’s timelines. By accepting EPA’s tardiness, the majority effectively nullified the statute’s carefully drawn deadlines.
  • Texas v. Nuclear Regulatory Commission, 21-60743, petition for review of NRC order
    • per curiam (Jones, Ho, Wilson), standing, administrative law
    • On remand from the Supreme Court of decision granting Texas’s petition to review an NRC license to store nuclear waste in the Permian formation, holding per the Supreme Court’s instruction that the state did not have a right to challenge the NRC’s action as ultra vires and dismissing the petition for review.

Unpublished decisions

  • La Carriers v. Rigid Constructors, 24-30659, appeal from E.D. La.
    • per curiam (Dennis, Haynes, Ramirez), maritime law
    • Affirming district court’s exoneration of petitioner from liability on claims brought in relation to the capsizing and sinking of a barge under tow by petitioner’s tugboat.
  • Sarzosa v. Enriquez, 25-40052, appeal from S.D. Tex.
    • per curiam (Dennis, Haynes, Ramirez), international child custody
    • Affirming district court’s judgment using Hague Convention standards rejecting father’s petition to transfer child to his custody.
  • Arreola v. Bondi, 25-60091, petition for review of BIA order
    • per curiam (Barksdale, Oldham, Douglas), immigration
    • Denying Mexican citizen’s petition for review of BIA order affirming the Immigration Judge’s (IJ) pretermitting his application for cancellation of removal.