Businesses of all types and sizes throughout the United States, Mexico and beyond bring their disputes to Gardere's litigation team and receive practical, responsive, boutique-style attention in return. Our clients have access to the firepower and value of a well-known and highly-regarded Firm's capabilities and interdisciplinary strengths.
Gardere has a national and international energy practice formed around our Energy Industry Team, which is a multidisciplinary group of approximately 60 attorneys with diverse backgrounds, experience and skills specific to the energy industry. Our team includes attorneys who have served as in-house counsel for major energy companies, providing a depth of insight into our clients' needs, issues and concerns. We understand and regularly practice in virtually every sector of the energy, and we represent a wide variety of industry participants from multinational corporations to individuals.
From our offices in the United States and Mexico, our International Practice helps clients operate in today’s global economy. We have more than 30 professionals operating as a boutique within an Am Law 200 law firm and are able to provide focused service with the resources of a large firm. We understand that clients who are engaged in the global marketplace need lawyers who can operate seamlessly across multiple jurisdictions. Our international experts are multi-lingual, are culturally fluent and intimately familiar with various legal systems across the world, especially those in Latin America. Whether you need help with commercial transactions, regulatory matters, customs and import regulations, immigration matters, M&A and joint ventures, international disputes, or international tax planning, Gardere’s international team is here to assist you.
We represent domestic and foreign private funds in all aspects of fund formation, fund operations, platform and add-on acquisitions, and portfolio company operations. Our team has a reputation for being the go-to-lawyers for private equity funds, hedge funds, venture capital funds and family offices. We are known for our vast deal experience, the efficient way we staff and manage our work, and the way we maintain our relationships. We get deals done with sophisticated, strategic, and practical advice tailored to the needs of our clients.
*Not admitted to practice law.
In a split decision, a panel of the 5th U.S. Circuit Court of Appeals held on Monday that the U.S. Environmental Protection Agency's rejection of Texas' Flexible Permit program in 2010 violated the federal Clean Air Act. Texas v. EPA, No. 10-60614 (5th Cir. Aug. 13, 2012). According to the Court, EPA overstepped its bounds by relying on impermissible reasons for rejecting the Texas program. According to the majority opinion, which called EPA's rejection "sixteen years tardy," as long as Texas met the CAA's minimum standards, it "enjoy[s] a measure of discretion." For that reason, EPA's disapproval transgressed the CAA's delineated boundaries of the cooperative relationship between the federal government and states.
In November 1994, Texas Gov. Ann Richards submitted for EPA approval a proposed amendment to its State Implementation Plan that included the Flexible Permit program. The Program allowed facilities to obtain a Flexible Permit that contained aggregate facility-wide emission limits and allowed facilities to make internal changes without additional regulatory review if the aggregate limits were not violated. Although the Program had been in operation since 1994, EPA did not announce its disapproval of the Program until July 2010 – over a decade after EPA's statutory deadline to act. According to the Court, EPA's disapproval of the Program left Texas facilities holding Flexible Permits vulnerable to federal enforcement. The State of Texas and a variety of industry groups sought judicial review of EPA's action.
In justifying its disapproval, EPA asserted that Texas' Flexible Permit program: (1) might allow major sources to evade Major New Source Review; (2) contained provisions for monitoring, recordkeeping and reporting that conferred too much "discretion" on the TCEQ, and were "vague" and not "replicable," and (3) used a methodology for calculating emissions caps that lacked clarity and was not replicable.
The majority rejected all three of EPA's assertions. First, EPA objected that Texas had "no express regulation" clearly limiting the Program to Minor NSR and no regulation "clearly prohibiting" use of the Program to avoid Major NSR. The Court, however, concluded that it need not defer to EPA's interpretation of Texas law and held that the Program "affirmatively" requires compliance with Major NSR. Although the Court noted that EPA might prefer that the Program include an "express negative statement," the Court held that neither the CAA or EPA regulations allowed EPA to reject a SIP provision based on its drafting preference. Ultimately, the Court held that:
Because the administrative record reflects that the EPA's rejection is based, in essence, on the Agency's preference for a different drafting style, instead of the standards Congress provided in the CAA, the EPA's decision disturbs the cooperative federalism that the CAA envisions. A state's "broad responsibility regarding the means" to achieve better air quality would be hollow indeed if the state were not even responsible for its own sentence structure. Bethlehem Steel Corp., 742 F.2d at 1036
The Court similarly rejected EPA's rationale for rejecting the Program provisions relating to MMR and calculation of emission caps. Essentially, the Court held that EPA had not identified how these provisions violated any requirement of the CAA and stated that principles of "cooperative federalism" prohibited EPA from insisting on its preferred approach if the state provisions otherwise complied with federal statutory and regulatory requirements.
Judge Higginbotham vigorously dissented because, in his opinion, the Court was "not faithfully applying the deferential arbitrary and capricious standard." He felt that EPA had not erred in concluding that Texas law did not adequately establish that the Program applies only to Minor NSR. He did not believe that EPA was demanding a "particular sentence structure or style" but was merely using those instances as examples of state programs that pass muster so as to illustrate the agency's reasoning and provide examples that might guide the state in correcting the Program's deficiencies. Ultimately, he found EPA's conclusion was not "arbitrary and capricious" and concluded that EPA did not act in excess of its statutory authority.
So what does this opinion mean for Texas, EPA, and Texas industry? First, EPA still has the option to seek en banc review by the 5th Circuit or certiorari in the Supreme Court. Second, although the Court vacated disapproval of the Program and remanded to EPA, the existing Program presumably remains unapproved until EPA acts. As noted in the opinion, TCEQ has already revised its Program to explicitly prohibit violation of Major NSR and is working to revise other elements to which EPA objected. If TCEQ continues moving forward to find accommodation and agreement, EPA may approve the Program.
The next move in this drama belongs to EPA. Whatever that move may be, you should not falsely hope that this issue will simply go quietly into the night.
For more information regarding this and other environmental topics, including environmental litigation, please contact Francis E. Phillips (email@example.com or 214.999.4803).
The publications contained in this site do not constitute legal advice. Legal advice can only be given with knowledge of the client's specific facts. By putting these publications on our website we do not intend to create a lawyer-client relationship with the user. Materials may not reflect the most current legal developments, verdicts or settlements. This information should in no way be taken as an indication of future results.
You may use the wildcard symbol (*) as a root expander. A search for "anti*" will find not only "anti", but also "anti-trust", "antique", etc.
Entering two terms together in a search field will behave as though an "OR" is being used. For example, entering "Antique Motorcars" as a Client Name search will find results with either word in the Client Name.
AND and OR may be used in a search. Note: they must be capitalized, e.g., "Project AND Finance."
The + and - sign operators may be used. The + sign indicates that the term immediately following is required, while the - sign indicates to omit results that contain that term. E.g., "+real -estate" says results must have "real" but not "estate".
To perform an exact phrase search, surround your search phrase with quotation marks. For example, "Project Finance".
Searches are not case sensitive.