Suits Filed by the State of Texas Against a Federal Agency December 2002 through Present

Style State of Texas and Texas Commission on Environmental Quality v. EPA, Cause No. 121344, consolidated with No. 121342, in the United States Court of Appeals for the District of Columbia Circuit 27 State of Texas and Texas Commission on Environmental Quality v. EPA, Cause No. 1260621, consolidated with Cause No. 12-60617, in the United States Court of Appeals for the Fifth Circuit State of Texas and Texas Commission on Environmental Quality v. EPA, Cause No. 121316, 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. Filed 8/6/12 Status Pending Synopsis 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. Regulation Title, Docket No. & Fed. Reg. Cite Regional Haze: Revisions to Provisions Governing Alternatives to Sourcespecific Best Available Retrofit Technology (BART) Determinations, Limited SIP disapprovals, and Federal Implementation Plans. a/k/a Regional Haze Rule Docket No. EPA-HQ-OAR2011-0729 77 Fed. Reg. 33642 (June 7, 2012) (final rule). Air Quality Designations for the 2008 Ozone National Ambient Air Quality Standards a/k/a Wise County Ozone Designation Docket No. EPA-HQ-OAR2008-0476 77 Fed. Reg. 30088 (May 21, 2012) (final rule).

26

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, IndustrialCommercial-Institutional, and Small IndustrialCommercial-Institutional Steam Generating Units a/k/a MATS Rule Docket Nos. EPA-HQ-OAR2009-0234 and EPA-HQOAR-2011-0044 77 Fed. Reg. 9304 (Feb. 16, 2012) (final rule). 5 U.S.C. Sec. 701 et seq. (APA); 42 U.S.C. Secs. 1315(a) (Medicaid Waiver); 1396a(a)(23) (Any Qualified Provider)

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.) State of Nebraska et al v. United States Department of Health and Human Services et al; No. 4:12cv-03035-CRZ (U.S.D.C., Nebraska)

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

2/23/2012

Pending

23

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-OAR2008-0638. 76 Fed. Reg. 81371 (December 28, 2011) (final rule). Preclearance under the Voting Rights Act

Texas v. Holder No. 1:12-cv00128-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

21

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.

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)

20 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 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

19

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. 1060891). On 10/24/12, the Court vacated EPA’s disapproval of Texas’ Senate Bill 7 rules and remanded the issue back to the EPA.

18

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-TX0031 76 Fed. Reg. 1525 (Jan. 11, 2011) (final rule) a/k/a SB 7 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 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

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.

17

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.

16

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.

15

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 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

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.

14

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

State of Texas v. United States Department of Education (5th Cir. 10-60793)

8/23/10

5/18/2011

13

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

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.

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

12

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. 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

11

Coalition for Responsible Regulation v. EPA (DC Cir. 101073)

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.

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 Approval and Promulgation of Implementation Plans; Texas; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Flexible Permits EPA-R06-0AR-2005-TX0032 75 Fed. Reg. 41312 (Jul. 15, 2010) (final rule) a/k/a Flexible Permits

10

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 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

9

Coalition for Responsible Regulation v. EPA (DC Cir. 101092)

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.

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

8

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 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.

7

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-TX0025 75 Fed. Reg. 19468 (Apr. 14, 2010) (final rule) a/k/a Qualified Facilities

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

6

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.

5

Coalition for Responsible Regulation v. EPA (DC Cir. 091322)

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

4

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.

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

2

State of Texas v. U.S. Dep’t of the Interior, et al. (5th Cir. 0550754)

11/28/07

1

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.