Texas Supreme Court holds BACT not forward-looking – Update from Hiser Burggraff & Curtis
In Port Arthur Community Action Network v. Texas Commission on Environmental Quality (PACAN), the Texas Supreme Court, on certification of a question from the U.S. Court of Appeals for the Fifth Circuit, addressed the proper definition of “best available control technology” (BACT) in the Texas program. Contrary to the U.S. EPA Region 6 suggestion that BACT is established by a prior permit decision for a similar facility, the Texas Supreme Court held that in Texas at least “previously issued permits are not determinative of BACT …. A previously permitted emissions level for one facility is neither necessary nor sufficient to establish BACT for other, similar facilities.” The Texas Supreme Court decision returns the matter to the Fifth Circuit for final disposition.