LUMINANT GENERATION COMPANY, L.L.C.; Big Brown Power Company, L.L.C.; State of Texas, Petitioners v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, 490 F. App'x 657

PER CURIAM: This case involves consolidated petitions for review of the EPA’s disapproval of an environmental regulation promulgated by the State of Texas. For the reasons discussed below, we VACATE the EPA’s disapproval of the regulation and REMAND to the EPA for further proceedings. I. BACKGROUND In 2011, the Environmental Protection Agency (“EPA” or “the Agency”) issued a final rule partially approving and partially disapproving revisions of the Texas State Implementation Plan (“SIP”) — a set of rules promulgated by the State of Texas in fulfillment of its obligations under the Clean Air Act.

See 42 U.S.C. § 7410; Approval and Promulgation of Air Quality Implementation Plans, 76 Fed.Reg. 1525 (Jan. 11, 2011) (to be codified at 40 C.F.R. pt. 52). At issue here is the Agency’s disapproval of a provision within the SIP, 30 Tex. Admin. Code § 116.911(a)(2), which requires owners and operators of certain electric generating facilities to demonstrate that any newly proposed pollution control methods comply with Texas’s Standard Permit for Pollution Control Projects (“PCP”). Petitioners argue that the EPA had no legal basis for disapproving

section 116.911(a)(2), and that the EPA’s actions therefore must be held “unlawful and set aside.” 5 U.S.C. § 706(2). II. DISCUSSION The EPA’s sole recorded basis for disapproving

section 116.911(a)(2) was that, in a prior ruling, the Agency had disapproved Texas’s Standard Permit for PCPs. See 76 Fed.Reg. at 1527. In other words, the EPA disapproved

section 116.911(a)(2) merely because that

section mandated compliance with Texas’s Standard Permit for PCPs, which the EPA had already disapproved. See id. (“[W]e are disapproving the submitted 116.911(a)(2) because it refers to and relies on the PCP [Standard Permit] that does not meet the applicable requirements of the [Clean Air] Act, and was previously disapproved by the EPA as a part of the Texas SIP.”). In Luminant Generation Co., L.L.C. v.

EPA (Luminant I), 675 F.3d 917, 921 (5th Cir.2012), this court held that “the EPA had no legal basis on which to disapprove” Texas’s Standard Permit for PCPs and, accordingly, vacated the EPA’s ruling on that issue. The EPA has now informed the court that, having had an opportunity to review Luminant I and the record in this case, the EPA cannot reconcile its disapproval of

section 116.911(a)(2) with this court’s holding in Luminant I. The Agency concedes, then, that its disapproval of

section 116.911(a)(2) was “not in accordance with law” and therefore must be vacated. 5 U.S.C. § 706(2)(A). We agree. III. CONCLUSION Accordingly, we VACATE the EPA’s disapproval of

section 116.911(a)(2) and REMAND for further proceedings consistent with this opinion and Luminant I. Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. . Only the EPA's disapproval of 30 Tex. Admin. Code § 116.911(a)(2) is currently before the court. In a prior, related case, this court addressed other EPA actions pertaining to Texas’s SIP. See Luminant Generation Co., L.L.C. v. EPA (Luminant I), 675 F.3d 917 (5th Cir.2012).

Because Luminant I thoroughly outlined the statutory and factual background related to Texas's SIP and Standard Permit for PCPs, and because the parties are familiar with the issues in this case, those details are not repeated here. . Given the court’s disposition of this matter, the petitioners’ motion for

summary vacatur and remand, and the EPA’s cross-motion to remand without vacatur — which were carried with the case — are DENIED as moot.