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




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




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


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



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



Quality v. United States

Environmental Protection

Agency, Cause No. 12-60128 in

the United States Court of

Appeals for the Fifth Circuit.


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:


Preclearance under the

Voting Rights Act


20

EME Homer City Generation,

L.P v. EPA (DC Cir. 11-1302)



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:


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:


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)



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


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


PM2.5 Rule.


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)


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


Deterioration Program to

Sources of Greenhouse Gas

Emissions: Finding of

Substantial Inadequacy and

SIP Call


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


Texas’ Pollution Control Project Standard Permit.


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:



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:




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


SO2 Rule (no. 10-1259).


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:



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:


Timing News Release:



Deterioration and Title V

Greenhouse Gas Tailoring

Rule; Final Rule


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


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


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:







Flexible Permits

EPA-R06-0AR-2005-TX-

0032

75 Fed. Reg. 41312 (Jul. 15,

2010) (final rule)

a/k/a Flexible Permits




8



1092)



Tailpipe Rule (no. 10-1182).


no. 10-1092.

On 6/26/12, the Court denied the State’s petition for

review.


News Release:


Light-Duty Vehicle

Greenhouse Gas Emission

Standards and Corporate

Average Fuel Economy

Standards; Final Rule


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)



Texas’ Qualified Facilities Program.


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:







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:


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



1322)


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.


News Release:


Endangerment and Cause or

Contribute Findings for

Greenhouse Gases under

Section 202(a) of the Clean

Air Act, Final Rule


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:


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.


texas

Documents

pcp standard permit

ocean energy management

luminant generation company

rehearing en banc

affordable care act

voting rights act

medicare modernization act

interstate transport requirements