Texas v. United States Environmental Protection Agency
706 F. App'x 159
| 5th Cir. | 2017Background
- petitioners challenge EPA Round 2 Supplement designations for four Texas SO2 areas; three Texas regions were designated nonattainment triggering SIP revisions; petitioners filed challenges in this court and separately in the D.C. Circuit; EPA moved to dismiss or transfer under 42 U.S.C. § 7607(b)(1) venue rules; venue hinges on whether action is nationally applicable, locally/regionally applicable, or based on nationwide scope or effect; the court independently assesses applicability and scope, not deferring to EPA; the court denies the motion without prejudice to merits panel reconsideration of whether the Supplement rests on nationwide determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Round 2 Supplement nationally applicable? | Petitioners contend the Supplement is nationally applicable. | EPA argues the Supplement is nationally applicable. | Not nationally applicable. |
| If not nationally applicable, is the Supplement based on nationwide scope or effect? | Determinative factors are Texas-specific, not nationwide. | Weight-of-evidence and modeling may reflect nationwide scope. | Not established as nationwide scope/effect; merits panel may revisit. |
| Should venue be transferred to the D.C. Circuit or dismissed based on § 7607(b)(1)? | (not explicitly stated in excerpt) | Venue should align with national/regional applicability. | Motion denied without prejudice to merits panel reconsideration. |
| Are the Round 2 Supplement and July 2016 Round 2 designations the same action for venue purposes? | If treated as the same action, transfer might be appropriate. | Supplment published as separate final rule; actions may be distinct. | Court follows standard action-by-action approach; not transferring at this stage. |
Key Cases Cited
- Texas v. EPA, 829 F.3d 405 (5th Cir. 2016) (venue framework for nationally applicable actions; review in D.C. Circuit when nationwide scope sought)
- S. Ill. Power Coop. v. EPA, 863 F.3d 666 (7th Cir. 2017) (national scope of action for venue; provided transfer guidance)
- Dalton Trucking, Inc. v. EPA, 808 F.3d 875 (D.C. Cir. 2015) (national applicability analysis focusing on face of rulemaking)
- Western Oil & Gas Association v. EPA, 633 F.2d 803 (9th Cir. 1980) (early designations in single region; locally applicable)
- Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138 (D.C. Cir. 2015) (review of multiple actions under national standard; consideration of supplemental actions)
- ATK Launch Sys., Inc. v. EPA, 651 F.3d 1194 (10th Cir. 2011) (analysis of designations under NAAQS for venue considerations)