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Baker Botts Comments on the Fifth Circuit's opinion in State of Texas et al. v. EPA Case


WASHINGTON, July 19, 2016 - Baker Botts L.L.P., a leading international law firm, announced today that the firm represented three industry petitioners in the U.S. Court of Appeals for the Fifth Circuit State of Texas et al. v. EPA case.

On July 15, 2016, the Fifth Circuit issued a 47-page ruling on two important motions in the State of Texas’ and industry petitioners’ challenge to EPA’s Regional Haze rulemaking for Texas and Oklahoma. The court granted the State and industry petitioners’ motion to stay the rule pending resolution of the petitions for review on the merits. The court also denied EPA’s motion to transfer the case to the U.S. Court of Appeals for the District of Columbia Circuit. A copy of the court’s decision can be viewed here.

Baker Botts Environmental partner, Derek McDonald, who is legal counsel to Coleto Creek Power LP, stated, “He is pleased by the Court’s July 15, 2016 decision to keep the case and grant the stay. Since the EPA’s regional haze Federal Implementation Plan (FIP) solely pertains to Texas plants, the Fifth Circuit is absolutely the proper circuit court to consider the merits of our challenge. Furthermore, the stay ensures that the Petitioners do not incur significant financial impact pending a final review of the FIP.”

The Fifth Circuit's decision emphasizes the limited role that EPA plays in the Clean Air Act statutory scheme governing State Implementation Plans, stating in the opinion, “If the Clean Air Act empowered EPA to draft reasonable progress goals on a blank slate, EPA's action may be permissible, but the Clean Air Act limits EPA to a deferential role. EPA must defer to Texas' goals so long as the Texas goals comply with the Act.”


Baker Botts is an international law firm of approximately 650 lawyers practicing throughout a network of offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology, and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit

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