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Transcript of Texas
Suits Filed by the State of Texas Against a Federal Agency
December 2002 through Present
Style Filed Status Synopsis Regulation Title, Docket
No. & Fed. Reg. Cite
27
State of Texas and Texas
Commission on Environmental
Quality v. EPA, Cause No. 12-
1344, consolidated with No. 12-
1342, in the United States Court
of Appeals for the District of
Columbia Circuit
State of Texas and Texas
Commission on Environmental
Quality v. EPA, Cause No. 12-
60621, consolidated with Cause
No. 12-60617, in the United
States Court of Appeals for the
Fifth Circuit
8/6/12 Pending Texas filed petitions for review in the U.S. Courts of
Appeals for both the District of Columbia Circuit and the
Fifth Circuit of EPA’s disapproval of Texas’s Regional
Haze plan.
This case is held in abeyance pending issuance of mandate
in CSAPR.
Regional Haze: Revisions to
Provisions Governing
Alternatives to Source-
specific Best Available
Retrofit Technology (BART)
Determinations, Limited SIP
disapprovals, and Federal
Implementation Plans.
a/k/a Regional Haze Rule
Docket No. EPA-HQ-OAR-
2011-0729
77 Fed. Reg. 33642 (June 7,
2012) (final rule).
26
State of Texas and Texas
Commission on Environmental
Quality v. EPA, Cause No. 12-
1316, consolidated with
Mississippi Commission on
Environmental Quality v. EPA,
Cause No. 12-1309, in the
United States Court of Appeals
for the District of Columbia
Circuit
4/16/2012 Pending Texas filed a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit of EPA’s
designation of Wise County as an ozone non-attainment
area.
Air Quality Designations for
the 2008 Ozone National
Ambient Air Quality
Standards
a/k/a Wise County Ozone
Designation
Docket No. EPA-HQ-OAR-
2008-0476
77 Fed. Reg. 30088 (May 21,
2012) (final rule).
25
State of Texas, Texas
Commission on Environmental
Quality, Texas Public Utility
Commission, and Railroad
Commission of Texas v. EPA,
Cause No. 12-1185, consolidated
with White Stallion Energy
Center, LLC v. EPA, Cause No.
12-1100, in the United States
Court of Appeals for the District
of Columbia
3/16/2012 Pending Texas filed a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit of EPA’s
MATS (Mercury and Air Toxics Standards) rule.
National Emission Standards
for Hazardous Air Pollutants
From
Coal- and Oil-Fired Electric
Utility Steam Generating
Units and Standards of
Performance for
Fossil-Fuel-Fired Electric
Utility, Industrial-
Commercial-Institutional,
and Small Industrial-
Commercial-Institutional
Steam Generating Units
a/k/a MATS Rule
Docket Nos. EPA-HQ-OAR-
2009-0234 and EPA-HQ-
OAR-2011-0044
77 Fed. Reg. 9304 (Feb. 16,
2012) (final rule).
24
State of Texas v. Kathleen
Sebelius, Secretary of the United
States Department of Health &
Human Services, in her official
capacity; United States
Department of Health & Human
Services (U.S.D.C., W.D.Tex.-
Waco Div.)
2/23/2012 Pending Texas challenged the decision of the Secretary of the U.S.
Health and Human Services to cut off funding for the
Texas Women's Health Program because Texas law
prohibits reimbursement to elective abortion providers.
News release:
https://www.oag.state.tx.us/oagnews/release.php?id=3995
5 U.S.C. Sec. 701 et seq.
(APA); 42 U.S.C. Secs.
1315(a) (Medicaid Waiver);
1396a(a)(23) (Any Qualified
Provider)
23
State of Nebraska et al v. United
States Department of Health and
Human Services et al; No. 4:12-
cv-03035-CRZ (U.S.D.C.,
Nebraska)
2/23/2012 Pending Texas challenged the decision of the U.S. Health and
Human Services to require religious organizations to
provide health coverage that conflicts with their moral and
religious beliefs.
News release:
https://www.oag.state.tx.us/oagNews/release.php?id=3980
22
State of Texas and Texas
Commission on Environmental
Quality v. United States
Environmental Protection
Agency, Cause No. 12-60128 in
the United States Court of
Appeals for the Fifth Circuit.
1/23/2012 Pending Texas filed a petition for review in the U.S. Court of
Appeals for the Fifth Circuit of EPA's partial disapproval
of the infrastructure and interstate transport requirements
for the 1997 ozone and 1997 and 2006 PM 2.5 NAAQS of
the Texas State Implementation Plan.
Approval and Disapproval
and Promulgation of
Implementation Plans; Texas;
Infrastructure and Interstate
Transport Requirements for
the 1997 Ozone and 1997 and
2006 PM 2.5 NAAQS.
Docket No. EPA-R06-OAR-
2008-0638.
76 Fed. Reg. 81371
(December 28, 2011) (final
rule).
21
Texas v. Holder No. 1:12-cv-
00128-RMC (D.D.C.)
9/20/11 Pending Texas filed a federal complaint in the U.S. District Court
for the District of Columbia under Section 5 of the Voting
Rights Act, 42 U.S.C. 1973c. The state is seeking a
declaratory judgment that its recently enacted voter
identification law, established under Senate Bill 14,
complies with the Voting Rights Act and is therefore
entitled to preclearance.
On August 30, 2012, the DC District Court denied Texas’
request for preclearance. Texas will appeal to the U.S.
Supreme Court.
News release:
https://www.oag.state.tx.us/oagnews/release.php?id=4136
Preclearance under the
Voting Rights Act
20
EME Homer City Generation,
L.P v. EPA (DC Cir. 11-1302)
7/19/11 Pending Texas filed a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit of EPA’s
CSAPR (no. 11-1338).
The case is consolidated in the DC Circuit under lead case
no. 11-1302.
On 12/30/11, the Court granted Texas’ motion to stay the
rule pending final outcome.
On 8/21/12, the Court vacated the CSAPR and remanded
the issue back to the EPA.
On 10/5/12, the EPA filed a petition requesting a rehearing
en banc.
News Release:
https://www.oag.state.tx.us/oagnews/release.php?id=4126
Federal Implementation
Plans: Interstate Transport of
Fine Particulate
Matter and Ozone and
Correction of SIP Approvals
EPA-HQ-OAR-2009-0491
76 Fed. Reg. 48208 (Aug. 8,
2011) (final rule)
a/k/a Cross-State Air
Pollution Rule (CSAPR)
19
State of Texas v. United States of
America and Eric H. Holder, Jr.
No. 1:11-v-01303-RMC (United
States District Court for the
District of Columbia)
3/14/11 Pending Preclearance suit seeking a declaratory judgment that the
state’s recently enacted redistricting plans for the State
Board of Education (the SBOE Plan), the Texas House of
Representatives (the House Plan), the Texas Senate (the
Senate Plan), and the U.S. House of Representatives (the
Congressional Plan) fully comply with Section 5 of the
Voting Rights Act, 42 U.S.C. § 1973c (Section 5).
On 8/28/12, the DC District Court denied Texas’ request
for preclearance.
On 10/19/12, Texas filed its jurisdictional statement with
the U.S. Supreme Court.
News Release:
https://www.oag.state.tx.us/oagNews/release.php?id=4129
Preclearance under the
Voting Rights Act
18
Luminant Generation Company,
et al v. EPA (5th Cir. 11-60158)
12/30/10
5/4/11
Pending Texas filed a petition for review in the U.S. Court of
Appeals for the Fifth Circuit of EPA’s disapproval of
Texas’ Senate Bill 7 Rules.
The case is consolidated in the Fifth Circuit under lead
case no. 11-60158. It is held in abeyance pending
resolution of the PCP Standard Permit case (no. 10-
60891).
On 10/24/12, the Court vacated EPA’s disapproval of
Texas’ Senate Bill 7 rules and remanded the issue back to
the EPA.
Approval and Promulgation
of Air Quality
Implementation Plans; Texas;
Revisions to Rules and
Regulations for Control of
Air Pollution; Permitting of
Grandfathered and Electing
Electric Generating Facilities
EPA-R06-OAR-2005-TX-
0031
76 Fed. Reg. 1525 (Jan. 11,
2011) (final rule)
a/k/a SB 7
17
Rick Perry, et al v. EPA (DC
Cir. 11-1128)
12/20/10 Pending Texas filed a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit of EPA’s
interim GHG FIP Rule on 12/30/10, and of EPA’s Final
GHG FIP Rule on 5/4/11. The cases are now consolidated
in the DC Circuit under lead case no. 11-1128.
Briefing was completed on 10/10/12 and the parties are
waiting on the court to issue the schedule for oral
argument.
Determinations Concerning
Need for Error Correction,
Partial Approval and Partial
Disapproval, and Federal
Implementation Plan
Regarding Texas’ Prevention
of Significant Deterioration
Program
EPA-HQ-OAR-2010-1033
75 Fed. Reg. 82430 (Dec. 30,
2010) (interim final); 76 Fed.
Reg. 25178 (May 3, 2011)
(final rule)
a/k/a GHG FIP
16
State of Texas v. EPA (DC Cir.
10-1415)
12/15/10
2/14/11
Pending Texas filed a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit of EPA’s
PM2.5 Rule.
The case is consolidated in the DC Circuit under lead case
no. 10-1415. It is held in abeyance pending EPA’s
reconsideration of its rule.
Prevention of Significant
Deterioration (PSD) for
Particulate Matter Less Than
2.5 Micrometers (PM2.5) –
Increments, significant
Impact Levels (SILs) and
Significant Monitoring
Concentration (SMC)
EPA-HQ-OAR-2006-0605
75 Fed. Reg. 64864 (Oct. 20,
2011) (final rule).
a/k/a PM2.5 Rule
15
Utility Air Regulatory Group v.
EPA (DC Cir. 11-1037)
12/12/10 Pending Texas filed petitions for review of EPA’s GHG SIP Call in
the U.S. Court of Appeals for the Fifth Circuit on
12/15/10, and in the U.S. District Court for the District of
Columbia on 2/14/11. The Fifth Circuit dismissed the case.
The case is now pending in the DC Circuit under lead case
no. 11-1037.
Briefing was completed on 5/14/12 and the parties are
waiting on the court to issue the schedule for oral
argument.
Action To Ensure Authority
To Issue Permits Under the
Prevention of Significant
Deterioration Program to
Sources of Greenhouse Gas
Emissions: Finding of
Substantial Inadequacy and
SIP Call
EPA-HQ-OAR-2010-0107
75 Fed. Reg. 77698 (Dec. 13,
2010) (final rule)
a/k/a GHG SIP Call
14
Luminant Generation Company,
et al v. EPA (5th Cir. 10-60891)
9/23/10 Final Texas filed a petition for review in the U.S. Court of
Appeals for the Fifth Circuit of EPA’s disapproval of
Texas’ Pollution Control Project Standard Permit.
The case is consolidated in the Fifth Circuit under lead
case no. 10-60891.
On 3/26/12, the U.S. Court of Appeals for the Fifth Circuit
vacated EPA's unlawful disapproval of Texas's PCP
Standard Permit and ordered EPA to reconsider the matter
"most expeditiously."
News Release:
https://www.oag.state.tx.us/oagnews/release.php?id=4014
Approval and Promulgation
of Implementation Plans;
Texas; Revisions to the New
Source Review (NSR) State
Implementation Plan (SIP);
Nonattainment NSR (NNSR)
for the 1-Hour and the 1997
8-Hour Ozone standard, NSR
Reform, and a Standard
Permit
EPA-R06-OAR-2006-0133
75 Fed. Reg. 56424 (Sept.
15, 2010) (final rule)
a/k/a PCP Standard Permit
13
State of Texas v. United States
Department of Education (5th
Cir. 10-60793)
8/23/10 5/18/2011 This legal challenge against the U.S. Department of
Education (DOE) was to secure $830 million in federal
education funds for Texas schools, teachers and students.
The legal action followed the DOE’s decision to deny
Texas’ application for Education Jobs Funds. The state’s
petition for review explained that the DOE misapplied
federal law when it construed an amendment by Austin
Congressman Lloyd Doggett in a manner that
unconstitutionally discriminated against the State of
Texas. The Office of the Attorney General dismissed this
lawsuit when Congress repealed the Doggett Amendment.
News Release:
https://www.oag.state.tx.us/oagNews/release.php?id=3698
12
National Environmental
Development Association's
Clean Air Project v. EPA (DC
Cir. 10-1252)
8/11/10 9/4/12 Texas - among other states, and following North Dakota’s
lead - filed a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit of EPA’s
SO2 Rule (no. 10-1259).
The case is consolidated in the DC Circuit under lead case
no. 10-1252.
On 7/20/12, the Court denied the states’ petition for
review.
Even though the states lost the lawsuit, negotiations
between the states and the EPA resulted in certain
concessions made by the EPA as to how it will quantify
SO2 that largely satisfy the states’ concerns.
Primary National Ambient
Air Quality Standard for
Sulfur Dioxide
EPA–HQ–OAR–2007–0352
75 Fed. Reg. 35520 (June 22,
2010) (final rule)
a/k/a SO2 Rule
11
The State of Texas; Rick Perry,
Governor of Texas; Jerry
Patterson, Texas Land
Commissioner Defendants v.
U.S. Dep’t of Interior; Bureau of
Ocean Energy
Management, Regulation and
Enforcement; Kenneth Salazar,
Secretary of Interior; and
Michael Bromwich, Director of
Bureau of Ocean Energy
Management, Regulation and
Enforcement Civil Action No:
2:10-cv-02949-MLCF-JCW;
United States District Court,
Eastern District of LA
6/1/10
8/2/10
11/8/10 Texas sued the Department of the Interior (DOI) in U.S.
District Court for the Southern District of Texas to
overturn the Obama Administration’s drilling moratorium
following the Deepwater Horizon disaster. The case was
transferred to the Eastern District of Louisiana. Shortly
thereafter, the moratorium was lifted and the case was
dismissed by agreement on 11/8/10.
News Release:
https://www.oag.state.tx.us/oagNews/release.php?id=3445
10
Coalition for Responsible
Regulation v. EPA (DC Cir. 10-
1073)
7/26/10 Pending On 6/1/10, Texas filed a petition for review in the U.S.
Court of Appeals for the District of Columbia Circuit of
EPA’s Timing Rule (no. 10-1128).
On 8/2/10, Texas filed a petition for review in the U.S.
Court of Appeals for the District of Columbia Circuit of
EPA’s Tailoring Rule (no. 10-1222).
The two cases are consolidated in the DC Circuit under
lead case no. 10-1073.
On 6/26/12, the Court dismissed the State’s petition for
review.
On 8/10/12, Texas filed a request for rehearing en banc.
Tailoring News Release:
https://www.oag.state.tx.us/oagNews/release.php?id=3769
Timing News Release:
https://www.oag.state.tx.us/oagNews/release.php?id=3769
Prevention of Significant
Deterioration and Title V
Greenhouse Gas Tailoring
Rule; Final Rule
EPA-HQ-OAR-2009-0517
75 Fed. Reg. 31514 (June 3,
2010)
a/k/a Tailoring Rule
Reconsideration of
Interpretation of Regulations
That Determine Pollutants
Covered by Clean Air Act
Permitting Programs
EPA-HQ-OAR-2009-0597
75 Fed. Reg. 17004 (Apr. 2,
2010) (final rule)
a/k/a Timing Rule
9
State of Texas, et al v. EPA (5th
Cir. 10-60614)
7/7/10 8/27/2012 Texas filed a petition for review in the U.S. Court of
Appeals for the Fifth Circuit of EPA’s disapproval of
Texas’ Flexible Permits Program.
On 8/13/12, the Court granted Texas’ petition for review,
vacated the EPA’s unlawful disapproval of Texas’ Flex
Permits Program and remanded the case to the EPA.
News Release:
https://www.oag.state.tx.us/oagNews/release.php?id=4111
Approval and Promulgation
of Implementation Plans;
Texas; Revisions to the New
Source Review (NSR) State
Implementation Plan (SIP);
Flexible Permits
EPA-R06-0AR-2005-TX-
0032
75 Fed. Reg. 41312 (Jul. 15,
2010) (final rule)
a/k/a Flexible Permits
8
Coalition for Responsible
Regulation v. EPA (DC Cir. 10-
1092)
6/11/10 Pending Texas filed a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit of EPA’s
Tailpipe Rule (no. 10-1182).
The case is consolidated in the DC Circuit under lead case
no. 10-1092.
On 6/26/12, the Court denied the State’s petition for
review.
On 8/10/12, Texas filed a request for rehearing en banc.
News Release:
https://www.oag.state.tx.us/oagNews/release.php?id=3748
Light-Duty Vehicle
Greenhouse Gas Emission
Standards and Corporate
Average Fuel Economy
Standards; Final Rule
EPA-HQ-OAR-2009-0472
75 Fed. Reg. 25324 (May 7,
2010)
a/k/a Tailpipe Rule
7
Texas Oil & Gas Association, et
al v. EPA (5th Cir. 10-60459)
3/23/10 Pending Texas filed a petition for review in the U.S. Court of
Appeals for the Fifth Circuit of EPA’s disapproval of
Texas’ Qualified Facilities Program.
The case is consolidated in the Fifth Circuit under lead
case no. 10-60459.
On 6/15/12, the U.S. Court of Appeals for the Fifth Circuit
denied Texas's Petition for Review.
On 7/30/12, Texas filed a request for panel rehearing and
rehearing en banc.
News Release:
https://www.oag.state.tx.us/oagNews/release.php?id=3357
Approval and Promulgation
of Implementation Plans;
Texas; Revisions to the New
Source Review (NSR) State
Implementation Plan (SIP);
Modification of Existing
Qualified Facilities Program
and General Definitions;
Final Rule
EPA-R06-0AR-2005-TX-
0025 75 Fed. Reg. 19468
(Apr. 14, 2010) (final rule)
a/k/a Qualified Facilities
6
State of Florida, et al. v. United
States Dep’t of Health and
Human Services, et al. (11th Cir.
11-11021 & 11-11067
[consolidated])
3/22/10 6/28/12 Texas, along with 12 other states, filed suit challenging the
constitutionality of the Patient Protection and Affordable
Care Act. The legal challenge explained that the new law
infringes upon Americans’ constitutionally protected
individual liberties, encroaches upon the states’
constitutionally guaranteed sovereignty, forces states to
spend billions of additional dollars on entitlement
programs, imposes an unconstitutional tax, and violates
the Tenth Amendment of the U.S. Constitution. The case
originated in N.D. of Florida (3:10-cv-00091). The district
court found that the health insurance mandate in section
1501 exceeded federal authority under the Constitution,
and that the provision could not be severed. The district
court ruled that the entire Act was therefore invalid.
The federal government appealed the lower court’s
decision to the Court of Appeals for the Eleventh Circuit.
On 8/12/11, the appeals court issued its opinion in which it
affirmed the district court’s ruling as to the mandate;
however, the appeals court found that this provision could
be severed, leaving the remainder of the Act in place. On
3/26/12 – 3/28/12, the U.S. Supreme Court heard oral
argument.
On 6/28/12, the U.S. Supreme Court held that he
individual mandate violates the Commerce Clause, but is
allowed as a tax under Congress’ authority to levy taxes.
The Court also held that the law’s Medicaid requirements
on states were also unconstitutional. The law was upheld.
News Release:
https://www.oag.state.tx.us/oagNews/release.php?id=3273
Patient Protection and
Affordable Care Act
5
Texas Pipeline Association &
Railroad Commission of Texas v.
FERC No. 10-60066 (5th Cir.)
2/16/10
9/7/10
10/24/11 Texas filed a petition for review in the U.S. Court of
Appeals for the Fifth Circuit on March 22, 2010. The
petition for review was granted and FERC Orders vacated
on 10/24/11.
The Railroad Commission of Texas, joined by the Texas
Pipeline Association, filed a petition for review of FERC
Orders that compelled intrastate natural-gas pipelines to
make daily Internet posts about their intrastate business
activities. The Railroad Commission argued that the
challenged orders exceeded FERC’s jurisdiction under the
Natural Gas Act. The Fifth Circuit agreed with the
Railroad Commission and vacated the FERC Orders in
question.
4
Coalition for Responsible
Regulation v. EPA (DC Cir. 09-
1322)
1/10/07 Pending Texas filed a petition for review in the U.S. Court of
Appeals for the District of Columbia of EPA’s
endangerment finding on 2/16/10 (no. 10-1041), and a
second petition for review of EPA’s denial of Texas’
administrative petition for reconsideration of the finding
on 9/7/10 (no. 10-1281).
The cases are consolidated in the DC Circuit Court with
lead case no. 09-1322.
On 6/26/12, the Court denied the State’s petition for
review.
On 8/10/12, Texas filed a request for rehearing en banc.
News Release:
https://www.oag.state.tx.us/oagNews/release.php?id=3733
Endangerment and Cause or
Contribute Findings for
Greenhouse Gases under
Section 202(a) of the Clean
Air Act, Final Rule
EPA-HQ-OAR-2009-0171
74 Fed. Reg. 66496
(12/15/09) (final rule)
a/k/a Endangerment Finding
3
Texas Water Dev. Bd. v. U.S.
Dep’t of Interior No. 08-1524, in
the U.S. Supreme Court; on
Appeal from the U.S. Court of
Appeals for the Fifth Circuit and
the U.S. District Court, N.D.
Tex. (Dallas)
3/26/06 4/8/10 This suit was brought at the request of the Texas Water
Development Board (TWDB). TWDB sought to reverse a
decision by the U.S. Fish & Wildlife Service (FWS)
designating the boundaries of a National Wildlife Refuge
on the Upper Neches River. This refuge will preclude
development of Fastrill Reservoir, a potential water source
for the City of Dallas proposed under the Texas Water
Plan. TWDB alleged that FWS failed to perform an
Environmental Impact Statement (EIS) as required, failed
to properly consider socioeconomic impacts when it
prepared its Environmental Assessment (EA), and other
matters. The district court dismissed TWDB’s claims, the
Fifth Circuit affirmed, and the U.S. Supreme Court denied
the TWDB's petition for writ of certiorari.
2
Texas v. Leavitt No. 135
(Original) (U.S. Supreme Court)
3/11/04 6/19/06 Texas led a coalition of five states, supported by 10
additional amici states, that attempted to file an original
action in the U.S. Supreme Court against the federal
government – specifically, the Secretary of the U.S. Dep’t
of Health and Human Services, Michael Leavitt –
regarding the so-called “clawback” provision of the
Medicare Modernization Act of 2003.
Texas argued that the clawback contravened longstanding
principles of our federal system: the doctrine that the
federal government cannot tax the states qua states; the
correlative precept that the federal government cannot
commandeer the states as congressional field offices; and
the explicit constitutional guarantee to the states of a
republican form of government. The case ended when the
Supreme Court denied the states’ motion for leave to file
the original action.
News Release:
https://www.oag.state.tx.us/oagNews/release.php?id=1483
Medicare Modernization Act
of 2003
1
State of Texas v. U.S. Dep’t of
the Interior, et al. (5th Cir. 05-
50754)
11/28/07 In 1995, the Kickapoo Traditional Tribe of Texas
petitioned the State of Texas to enter into a compact
facilitating Class III gaming on its land. Texas rejected the
Kickapoos’ offer. The tribe filed a federal lawsuit against
Texas that was eventually dismissed. In 2004, the
Kickapoo submitted a proposal to the Secretary of the
Interior, who followed the Secretarial Procedures and
invited Texas to comment. Texas challenged the validity
of Interior Department rules for Class III gaming
procedures, and a district court judge granted partial
summary judgment to the Department. Texas appealed the
decision to the U.S. Court of Appeals for the Fifth Circuit,
contending that the Secretarial Procedures violated the
constitutional separation of powers and were unauthorized
by IGRA or any other federal statute. In 2007, the appeals
court reversed the lower court’s decision and remanded the
case for further review.