2020 Environmental Real Estate IssuesThe US Court of Appeals for the 5th Circuit, the intermediate federal appellate court that takes appeals from Texas federal courts, has agreed with EPA’s current position that Clean Air Act (CAA) Title V permitting “is not the appropriate vehicle for reexamining the substantive validity of underlying Title I preconstruction permits.”  Moreover, the language of Environmental Integrity Project v. EPA suggests the 5th Circuit will not allow EPA to change positions on the issue, despite EPA’s history of differing interpretations.

Title V Permits Contain Preconstruction Permits
The purpose of CAA Title V “is to provide each source a single permit that contains and consolidates all the information it needs to comply” with the CAA.  States issue Title V permits, which usually contain all the source’s Title I preconstruction permits.  Once approved, the issuing state submits the Title V permit to EPA for review.  If EPA does not object during the 45-day review period, any person may petition EPA within 60 days, requesting EPA object.  The Environmental Integrity Project (EIP) petitioned EPA to object to a Title V permit issued by the Texas Commission on Environmental Quality to an ExxonMobil facility in Texas.  EIP sought judicial review after EPA determined EIP had failed to demonstrate the Title V permit did not comply with the CAA.

No Review of Preconstruction Permits in Title V Process
EIP asserted EPA should review underlying preconstruction permits in the Title V process.  EIP’s complaint alleged an ExxonMobil preconstruction permit, which would be contained in the Title V permit, did not comply with CAA requirements.  EPA disagreed and denied EIP’s petition.

EPA’s interpretation on the issue appears to have changed with different administrations.  In 1991 (Bush 1), EPA stated Title V permits should incorporate the preconstruction permits “without further review.”  However, during the Clinton administration, EPA indicated it could use Title V review to “object to an improper preconstruction determination.”  Several decisions during the Obama administration showed EPA had evaluated the preconstruction permitting as part of the Title V process.  In 2017 under President Trump, EPA reverted to its 1991 position and concluded “in Title V review, neither EPA nor state permitting authorities must determine whether the source received the right kind of preconstruction permit.”

The 5th Circuit upheld EPA’s rejection of EIP’s petition and indicated EPA’s current interpretation was entitled to deference.  Moreover, the opinion’s analysis of the CAA suggests EPA’s current interpretation is probably the only proper CAA interpretation.  If so, the 5th Circuit will insist on EPA’s current interpretation even if a future administration’s EPA claims it can evaluate preconstruction permitting as part of the Title V process.

For a copy of the 5th Circuit’s opinion http://www.ca5.uscourts.gov/opinions/pub/18/18-60384-CV0.pdf