The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit in the case of Port Arthur Cmty. Action Network v. Tex. Comm’n on Env’t Quality

Port Arthur Cmty. Action Network v. Tex. Comm’n on Env’t Quality, _ S.W.3d
, 2025 WL (Tex. Feb. 14, 2025) [24-0116]

In this case the Court answers a certified question from the United States Court of Appeals for the Fifth Circuit.

Port Arthur LNG sought a permit from the Texas Commission on Environmental Quality to expand its liquefied natural gas plant. To receive a permit, the applicant must show that emission sources at the facility satisfy Best Available Control Technology requirements. Port Arthur Community Action Network, an environmental group, challenged whether BACT was met, arguing that Port Arthur LNG had proposed emission limits for certain pollutants that exceeded the limits TCEQ had previously approved for another plant, the Rio Grande Plant. The Rio Grande Plant has a permit but has yet to be constructed. TCEQ rejected PACAN’s challenge and granted a permit
to Port Arthur LNG. PACAN appealed this decision to the Fifth Circuit under the federal Natural Gas Act.

The Fifth Circuit certified this question to the Texas Supreme Court: “Does the phrase ‘has proven to be operational’ in Texas’s definition of ‘best available control technology’ codified at section 116.10(1) of the Texas Administrative Code require an air pollution control method to be currently operating under a permit issued by the
Texas Commission on Environmental Quality, or does it refer to methods that TCEQ deems to be capable of operating in the future?”

The Court answered the question as follows. BACT is technology that has already proven, through experience and research, to be operational, obtainable, and capable of reducing emissions. BACT does not extend to methods that TCEQ deems to be capable of operating in the future. Further, BACT is not limited to a pollution control method that is currently operating under a previously granted permit. The earlier permit, such as one for a facility that has yet to be built, might exceed a level of pollution control that is currently available, technically practical, and economically reasonable. A previously permitted emissions level for one facility is neither necessary nor sufficient to establish BACT for other, similar facilities.