PORT ARTHUR, Texas — A federal appeals court has reversed a permit for a Port Arthur LNG facility saying the state was applying its policy inconsistently.
The U.S. Court of Appeals for the Fifth Circuit ruled in favor of the Port Arthur Community Action Network, or PACAN, and reversed a Texas Commission on Environmental Quality permit for the Port Arthur LNG.
In February 2022, at a contested case hearing, Port Arthur resident John Beard and his organization, Port Arthur Community Action Network, or PACAN, challenged a permit issued to Port Arthur LNG by the Texas Commission on Environmental Quality.
Beard argued at the hearing that the air quality permits issued by the TCEQ to the facility could pose a health issue and that the agency should apply the same standards to the Port Arthur facility as it had to a similar project planned in Brownsville.
Beard’s group introduced a 2020 permit amendment for Rio Grande LNG as an exhibit showing that the Brownsville facility’s emission rates for nitrogen oxides and carbon monoxide had been reduced according to the Fifth Circuit’s ruling.
The amendment showed that both facilities use the very same equipment, General Electric Frame 7EA combustion turbines with Dry-Low NOx combustors.
The Rio Grande LNG facility was approved by the TCEQ but is not yet in operation.
The amendment lowered the NOx and CO emission rates from 9 ppmvd of NOx an 25 ppmvd of CO to 5 ppmvd of NOx and 15 ppmvd of CO at the Brownsville facility.
The Port Arthur LNG facility emissions rates had also been set at 9 and 25 ppmvd of NOx and CO according to the ruling.
Two administrative law judges overseeing the hearing issued a “Proposal for Decision and Proposed Order” and sided with PACAN saying that the permits should include the lower emissions rates from the amendment at Rio Grande LNG.
TCEQ did not agree and rejected the judge’s proposal saying they were “not demonstrated to be achievable or proven to be operational, obtainable, and capable.”
PACAN then appealed to the Fifth Circuit.
The Fifth Circuit said in its ruling that the TCEQ did not apply its own policy consistently by ignoring the administrative judges’ proposal and the emissions limits approved at the plant in Brownsville.
"Because Sempra can do better Sempra can actually pollute less than what this permit would allow. And it wasn't just the two state judges who said that was the EPA as well," Ilan Levin, director and lawyer for the environmental integrity project said.
In vacating the permit the court noted that the TCEQ acted “arbitrarily and capriciously under Texas law.”
"It was good news, it was welcomed news. It's an end of a long road. At least at this point it is. We don't know if the company is going to appeal or not," Beard said.
However, Port Arthur Mayor Thurman Bartie disagrees.
"I don't want anything to be harmful to citizens, but at the same time I don't want to do something that's going to harm the industry," he said.
Sempra still has a chance to appeal this decision.
"I will not, I am not going to be a part of something that would call for the total eradication of an industry that can sustain my city for the next 125 years," Bartie said.
What does this ruling mean for the facility in Port Arthur?
Levin says he believes construction must stop but the lawyer for Port Arthur says it prohibits the company from moving to phase two of it's plan.
Mayor Bartie says construction on phase one will continue.
Sempra Communications Manager Kym Butler says they are reviewing the decision of the Fifth Circuit Court of Appeals and any potential impacts it may have to the Port Arthur LNG Project.
"We are continuing construction on the project under existing permits and remain committed to working with the Texas Commission on Environmental quality and other stakeholders and are evaluating our next steps," Butler said.
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This is a developing story. We will update with more if and when we receive more confirmed information.
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