A massive liquefied natural gas project in southeast Texas is on hold after a federal appeals court vacated an emissions permit granted by the Texas Commission on Environmental Quality (TCEQ), ruling that the state agency "acted arbitrarily and capriciously" and applied uneven standards when it signed off on the planned Port Arthur LNG facility.
Tuesday's ruling by the U.S. Court of Appeals for the Fifth Circuit, based in New Orleans, was in response to a complaint filed on behalf of the Port Arthur Community Action Network. It expressed concerns about the amount of health-threatening air pollution that would be created by the proposed plant and argued the TCEQ had required another LNG facility in the state to have emissions rates that were nearly twice as stringent for its refrigeration compression turbines – such a plant's most significant source of carbon monoxide and nitrogen oxide pollution.
"The Texas Commission on Environmental Quality declined to impose certain emissions limits on a new natural gas facility that it had recently imposed on another such facility," the court wrote in its ruling. "In doing so, it contravened its policy of adhering to previously imposed emissions limits, but did not explain why. It therefore acted arbitrarily and capriciously under Texas law."
The TCEQ declined to comment on the court's ruling.
Sempra Energy, the California-based company that is developing and marketing the Port Arthur LNG project along the Gulf Coast south of the Beaumont, said in a statement it is reviewing the appellate court’s decision and “any potential impacts it may have to the Port Arthur LNG project.”
The court ruling does not necessarily prevent the Port Arthur LNG project from materializing, but requires the company to reapply for a TCEQ permit under the emissions standards imposed on the Rio Grande LNG project in South Texas. The proposed facility in Port Arthur is billed as being able to produce up to 13.5 million metric tons per year with the first two of four planned natural gas liquefication trains.
“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,” Sempra said in its statement.
The Fifth Circuit ruling was lauded by the Port Arthur Community Action Network and the two nonprofits that represented it, the Environmental Integrity Project and Lone Star Legal Aid. They said in a news release that the proposed facility in Port Arthur, with its total planned capacity of four natural gas liquefication trains, would potentially release up to 7.7 million tons per year of greenhouse gases, 1,895 tons of nitrogen oxides and 428 tons of soot-like particulate matter.
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"This legal win should be a wakeup call not only for Texas, but also for the Biden Administration's EPA," Ilan Levin, the Texas director for the Environmental Integrity Project, said in a news release. "For Texas, this legal opinion is a clear message to stop bending over backwards to accommodate the whims of fossil fuel corporations like Sempra or Exxon. And to the Biden Administration, the court's ruling demonstrates that the path to environmental and climate justice is through strict enforcement of bedrock anti-pollution laws like the ones the court relied on in this case."
The TCEQ issued an emissions permit to Port Arthur LNG in 2021, and it was subsequently challenged by the Port Arthur Community Action Network. Two judges with the Texas Office of Administrative Hearings ruled in the community group's favor in 2022, but that decision was then reversed by TCEQ commissioners.
The Port Arthur Community Action Network then asked the Fifth Circuit to weigh in. Its executive director, John Beard, said the court's ruling was "welcomed" but not surprising.
"TCEQ's mission says the agency is supposed to protect public health, but TCEQ has all but rubber-stamped permits without meaningfully considering the health and safety of fenceline communities," said Chase Porter, a staff attorney with Lone Star Legal Aid. "The court makes clear this practice by TCEQ is, simply put, illegal."
