The certified question arises from litigation about TCEQ's air permit for a liquefied natural gas export facility in Port Arthur. Opponents argued that because TCEQ had permitted a similar Rio Grande LNG facility with tighter emission limits and identical turbines and controls, TCEQ acted inconsistently by allowing higher emissions at Port Arthur LNG; TCEQ said "proven to be operational" confines the inquiry to control methods already operating.¹

The Fifth Circuit withdrew its original opinion on rehearing and certified this question to the Court: whether the phrase "has proven to be operational" in 30 Texas Administrative Code § 116.10(1) requires a control method to be currently operating under a TCEQ permit or refers to methods TCEQ deems capable of operating in the future. The Court accepted the question under Article V, § 3-c of the Texas Constitution and heard argument October 2, 2024; Justices Young and Sullivan did not participate.¹

Certified question from the United States Court of Appeals for the Fifth Circuit under Article V, § 3-c of the Texas Constitution.²

Whether "has proven to be operational" in the definition of best available control technology requires a control method to be currently operating under a TCEQ permit or covers methods TCEQ deems capable of operating in the future.¹

Administrative rules are read like statutes, on their plain text, in light of the statute that gives them force.¹

Port Arthur Community Action Network (Petitioner): the phrase covers technologies and limits both currently operating under a permit and capable of operating in the future, and TCEQ should have applied the federal major-source definition.¹

TCEQ (Respondent): the question presents a false dichotomy; "available" means at hand or readily obtainable, so the phrase includes options operating at an existing facility or presently obtainable commercially.² The Governor of Texas filed an amicus brief raising whether the federal case presents a federal question.³

Not applicable to the Court's decision; the opinion does not recite the petition's cert-worthiness arguments.

None noted

Holding

"Has proven to be operational" in the rule means already demonstrated through real-world experience and research to be operational, obtainable, and capable of reducing emissions; it is neither limited to methods currently operating under a TCEQ permit nor extended to methods TCEQ deems capable of operating in the future, and a prior permit is not determinative of best available control technology for other facilities.¹

Reasoning

The Texas Clean Air Act provision requiring a permit if the facility "will use at least the best available control technology," with the statutory considerations of technical practicability and economic reasonableness, suggests technology that is currently available. The rule's perfect-tense "has proven" and its requirement of proof "through experience and research" refer to what is already demonstrated in the real world, not future speculation, nor a permit history. Because the statute asks only whether a facility will use at least best available control technology, a permit issued to one facility does not set the standard for the next, though earlier permits may be relevant and TCEQ must treat like applicants alike.² The Court did not address federal-law questions.³

Disposition

The certified question is answered as set out in the opinion.

Vote Breakdown

Majority Opinion by Chief Justice Blacklock

Joined by Bland, Boyd, Busby, Devine, Huddle, and Lehrmann, JJ.

Did Not Participate

Sullivan and Young, JJ.