ELR Citation: 54 ELR 20012
No(s). 17-60088 (5th Cir. Jan 11, 2024)

The Fifth Circuit, 2-1, denied petitions to review EPA's 2016 designation of two counties in Texas as nonattainment for the 2010 sulfur dioxide NAAQS. The state of Texas and the owner of a power plant located in one of the counties sought to have the designation vacated, arguing it violated the CAA because evidence available at the time showed attainment, that EPA treated similarly situated counties in other states differently than the two at issue here, and that EPA misconceived the law in issuing the designation and denying petitions for reconsideration because it erroneously believed it did not have the authority to delay classification until the state gathered monitoring data. The court found EPA did not act arbitrarily or capriciously in designating the two counties as nonattainment, that petitioners failed to present an argument that designation of the counties was inconsistent with the designation of other counties, and that petitioners failed to explain what aspect of the CAA the Agency misconceived when it concluded it did not have discretion to await additional monitoring data before issuing its designation. It denied the petitions.