A Fifth Circuit Case On BACT Reflects Trend In Citizen Opposition To Gulf Coast Projects

Last week, the U.S. Court of Appeals for the Fifth Circuit upheld the Texas Commission on Environmental Quality's (TCEQ) issuance of an amended New Source Review (NSR) air permit to multinational joint-venture Port Arthur LNG. See Port Arthur Community Action Network v. Texas Commission on Environmental Quality.¹This decision should end a four-year dispute over a TCEQ air permit to authorize construction of a new LNG plant and export terminal on the Gulf Coast. Petitioner Port Arthur Community Action Network (PACAN), has until November 10, 2025, to file a writ of certiorari in the United States Supreme Court.

The Fifth Circuit ruling applied the Texas Supreme Court's holding of a certified question to settle the meaning of "best available control technology" (BACT) in the context of TCEQ NSR air quality permitting. The Texas Supreme Court held that BACT means "the best pollution control technology that is currently available, technically practicable, and