Texas SIP Construction-Deadline Extensions: 30 Tex. Admin. Code § 116.120(c) Requires Only Prior Litigation-Based Extension + 10% Expenditure; Chapter 50 Procedures Do Not Apply

Case: South Texas Environmental Justice Network v. Texas Commission on Environmental Quality (5th Cir. Jan. 14, 2026) — Petition for review denied.

1. Introduction

This Fifth Circuit decision arises from the permitting and timing of construction for “Texas LNG,” a liquid-natural-gas terminal project in Brownsville, Texas. The Texas Commission on Environmental Quality (TCEQ), acting under Texas’s EPA-approved State Implementation Plan (SIP) within the Clean Air Act framework, had issued Texas LNG a minor-source New Source Review (NSR) permit. Under TCEQ rules, permits generally become void if construction does not begin by a deadline—unless the executive director grants up to three extensions.

Since 2021, TCEQ’s executive director granted Texas LNG three extensions. After the third extension, the South Texas Environmental Justice Network (STEJN) moved to overturn it; TCEQ did not act in time, and the motion was denied by operation of law. STEJN then filed this petition for review in federal court.

The case presented three central issues:

Authority/procedure: Whether the executive director had to comply with the procedural prerequisites in Tex. Admin. Code § 50.133(a) when granting a construction-deadline extension under § 116.120.
Substantive burden for a third extension: Whether § 116.120(c) requires only (i) a prior litigation-based extension under § 116.120(b)(1) and (ii) the expenditure showing under § 116.120(b)(2), or whether the permittee must also re-demonstrate broader emissions compliance (BACT/NAAQS) via the “parent provision” in § 116.120(b).
Standing: Whether STEJN could show injury, traceability, and redressability when challenging an extension rather than the underlying permit.

2. Summary of the Opinion

The Fifth Circuit denied the petition for review. It held:

STEJN has associational standing because members alleged concrete recreational, aesthetic, and religious injuries tied to the project’s pollution and construction; the injuries were traceable to the extension (which kept the project alive) and redressable under the relaxed standard for procedural rights.
Chapter 50 procedures do not govern NSR construction-deadline extensions; the executive director’s authority flows from 30 Tex. Admin. Code § 116.120, not § 50.133(a).
A third extension under § 116.120(c) has only two express conditions: prior receipt of a litigation-based extension under § 116.120(b)(1) and satisfaction of the expenditure condition in § 116.120(b)(2). The court rejected STEJN’s attempt to import the emissions-compliance “parent provision” from subsection (b) into subsection (c).
Substantial evidence supported TCEQ in any event: the record contained evidence of required expenditures and, even assuming emissions-compliance showings were relevant, updated BACT and NAAQS-related submissions supported the agency’s conclusion.

3. Analysis

3.1. Precedents Cited

A. Jurisdiction and the NGA “acts pursuant to Federal law” pathway

Sierra Club v. La. Dep't of Env't Quality — Used (with 15 U.S.C. § 717r(d)(1)) to confirm the Fifth Circuit’s original and exclusive jurisdiction under the Natural Gas Act (NGA) over state-agency permitting actions taken pursuant to a SIP. This anchors federal appellate review even though Texas law supplies the merits standard.
Port Arthur Cmty. Action Network v. TCEQ — Reinforced both the SIP/NSR context and the Texas-law “substantial evidence/arbitrary and capricious” review frame for TCEQ actions challenged in the Fifth Circuit under the NGA.

B. Standard of review for Texas agency action (substantial evidence / arbitrariness)

Collins v. Tex. Nat. Res. Conservation Comm'n and Heritage on San Gabriel Homeowners Ass'n v. TCEQ — Provided the operative Texas “substantial evidence” and “reasoned decision-making” formulations the panel applied: the question is whether there is “some reasonable basis in the record,” with a presumption in the agency’s favor.

C. Standing (injury, traceability, redressability) in environmental/procedural cases

Lujan v. Defs. of Wildlife — Supplied the canonical injury/causation/redressability framework.
Ctr. for Biological Diversity v. EPA, Citizens for Clean Air & Clean Water in Brazoria Cnty. v. U.S. Dep't of Transp., and Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc. — Supported recognizing aesthetic/recreational harms from pollution and project approvals (including threatened injury).
Diamond Alt. Energy, LLC v. EPA and FDA v. All. for Hippocratic Med. — Framed the “predictable chain of events” requirement when a plaintiff is not the object of regulation and injury depends on third-party responses (here, Texas LNG’s likely construction if the extension stands).
California v. Texas — Used for the redressability inquiry’s “relationship between relief and injury.”
Massachusetts v. EPA, Gulf Restoration Network v. Salazar, Texas v. United States, and Sierra Club v. Glickman — Supported the “procedural right” redressability principle: the petitioner need show only a possibility that proper procedures could prompt reconsideration protecting a concrete interest.
Deep S. Ctr. for Env't Just. v. EPA — Cited as a contrast case where construction could proceed with or without the challenged agency action, undermining traceability; the panel distinguished this case because the extension itself enabled late construction.

D. Texas finality / posture

TXI Operations LP v. TCEQ — Supported the proposition that the commission’s decision on a motion to overturn is the final appealable order, helping frame what was properly before the court (the third extension denial/operation-of-law denial).

E. Regulatory/statuory interpretation canons used to reject STEJN’s reading

Matter of Pirani — Endorsed the scope-of-subparts canon the panel used to parse the structure of § 116.120.
Martin v. United States — Supported the presumption that a proviso modifies only the subsection where it appears; the court analogized this to the “parent provision” in § 116.120(b).
United States v. Mississippi — Reinforced the anti-judicial-rewriting principle: courts may not expand a rule’s scope beyond what its text states or reasonably implies.
Busic v. United States (and the recognized statutory supersession in Abbott v. United States) — Provided the “specific-over-general” canon the court applied to conclude § 116.120 controls over general Chapter 50 procedures.
INS v. Nat'l Ctr. for Immigrants' Rts., Inc. — Cited for using titles/headings as interpretive aids; the panel used the structure and titles of the Texas Administrative Code chapters/subchapters to confirm the correct procedural regime.
United States v. Lowell and Sandras v. State Farm Fire & Cas. Co. — Cited to explain (and cabin) the scope-of-subparts canon and when formatting may or may not carry interpretive weight.

F. Permit-deadline “voidness” argument (timely request; late approval)

R.R. Comm'n of Tex. v. Coppock — Used to reject the idea that a permit becomes void merely because the agency approved an extension after the then-existing deadline, where the extension request was timely and the rule did not require approval before the deadline.

3.2. Legal Reasoning

A. Standing: why an “extension” is enough for Article III

The court accepted STEJN members’ declarations describing concrete use of, and attachment to, the affected area (fishing, hiking, aesthetic enjoyment, and worship near a sacred site) and harm from projected pollution and development.

On traceability, the court treated the third extension as a meaningful causal link: without it, Texas LNG would be time-barred from beginning construction as late as it planned. The court framed the extension as functionally enabling the “project can go on,” making construction (the injury catalyst) a predictable response to the agency action under FDA v. All. for Hippocratic Med. and Diamond Alt. Energy, LLC v. EPA.

On redressability, the court applied the procedural-right doctrine: STEJN did not need to prove that vacating the extension would definitively stop the terminal forever; it was enough that proper agency reconsideration could possibly protect their concrete interests. The court grounded this in Massachusetts v. EPA and Fifth Circuit applications like Texas v. United States.

B. Procedure: Chapter 50 does not constrain § 116.120 extension decisions

STEJN’s procedural theory was that Tex. Admin. Code § 50.133(a)—with prerequisites such as satisfaction of notice requirements and absence of objections—governed extension requests. The court rejected that by reading the Texas Administrative Code’s internal allocation of authority:

§ 50.131 is a general delegation framework for executive director “action on applications and other authorizations,” including extensions.
But § 50.131 also states it does not “affect the executive director's authority” where authority is “delegated elsewhere,” and § 50.131(c)(1) limits application to certain Chapter 116 “air quality standard permits.”
§ 116.120(b) is a targeted delegation within the NSR permit program: “The executive director may grant extensions to begin construction.”

Applying the specific-over-general canon (via Busic v. United States), the court treated § 116.120 as the controlling, more specific authority for NSR construction-deadline extensions. Because § 116.120 imposes no notice-and-comment prerequisites on the executive director for extension approvals, the executive director did not exceed her authority by not following § 50.133(a).

C. Substance: the new rule on what § 116.120(c) requires

The central interpretive holding is the court’s construction of 30 Tex. Admin. Code § 116.120(c). The panel held that subsection (c) has only two express conditions:

the permittee previously received an extension under § 116.120(b)(1) (litigation not of the permit holder’s initiation); and
the permittee meets the expenditure condition in § 116.120(b)(2) (spent/committed ≥10% up to $5 million).

STEJN attempted to add a third-extension requirement: a renewed demonstration of emissions compliance (including updated BACT and updated NAAQS/SIL analysis) based on the “parent provision” in § 116.120(b) requiring the permit holder to “demonstrate[] that emissions from the facility will comply with all rules and regulations.”

The court rejected that importation using textual structure and canons: subsection (b) governs first and second extensions (“first extension,” “one additional extension”), while subsection (c) separately governs the “one subsequent extension.” Under the scope-of-subparts logic (supported by Matter of Pirani) and the presumption about provisos (supported by Martin v. United States), the “parent provision” in (b) does not automatically carry over into (c). In the court’s words, “relation is different than rewriting a [regulation]” (citing United States v. Lowell) and “[n]othing is to be added to what the text states or reasonably implies.”

D. Substantial evidence: even under STEJN’s tougher reading, TCEQ still wins

The court added an alternative holding: even if a third extension required updated emissions-compliance showings, the record still contained “some reasonable basis” for TCEQ’s decision under Collins v. Tex. Nat. Res. Conservation Comm'n.

BACT: Texas LNG submitted updated analyses stating no new control techniques had developed since permitting and included a comparison chart; TCEQ found continued compliance with current BACT and protectiveness of human health.
NAAQS/SIL: The opinion noted the annual PM2.5 SIL decreased, but Texas LNG’s modeled concentrations (0.06 and 0.1 μg/m³) remained below both the former and current SIL; the panel also pointed to FERC’s post-remand assessment (Texas LNG Brownsville LLC, 192 FERC ¶ 61,170) reaffirming compliance with updated NAAQS.

3.3. Impact

Three practical impacts follow from the opinion:

Text-first constraint on third-extension challenges: For Texas NSR permits, opponents challenging a third construction-deadline extension face a narrowed merits path: under the court’s reading, § 116.120(c) turns primarily on (i) the prior litigation-based extension and (ii) the 10% expenditure showing—not a reopened merits fight over the underlying permit’s technical analyses.
Procedural streamlining for TCEQ executive director actions: The holding that § 50.133(a) does not apply to § 116.120 extensions strengthens the executive director’s ability to act under the more specific NSR extension rule without importing general “application” procedures.
Standing is affirmed for extension-focused litigation: Environmental and community groups may have standing to challenge deadline extensions (not only initial permits) when the extension predictably enables construction and the plaintiffs allege concrete, localized aesthetic/health/religious harms. This matters in fast-moving infrastructure contexts where the extension—rather than the initial permit—may be the actionable event.

4. Complex Concepts Simplified

SIP (State Implementation Plan): A state’s EPA-approved plan for how it will meet federal air-quality standards under the Clean Air Act. Once approved, SIP rules can function as “federal law” for NGA jurisdiction purposes.
NSR (New Source Review): A preconstruction permitting program for new or modified stationary sources of air pollution. It distinguishes major vs. minor sources based on emissions thresholds.
NAAQS and SILs: NAAQS are national ambient air-quality limits; SILs (Significant Impact Levels) are screening thresholds used in permitting to gauge whether a source’s modeled impact is significant enough to warrant deeper analysis.
BACT (Best Available Control Technology): A requirement that a facility use technically feasible and economically reasonable controls to reduce emissions.
Substantial evidence review: A deferential standard asking whether the agency had some reasonable support in the record, not whether the reviewing court would reach the same decision.
Procedural-right redressability: When plaintiffs allege an agency failed to follow procedures designed to protect their concrete interests, they need show only that proper procedure could possibly lead to reconsideration that mitigates harm.

5. Conclusion

The Fifth Circuit’s decision establishes a clear interpretive rule for Texas NSR permit construction-deadline extensions: 30 Tex. Admin. Code § 116.120(c) is not a vehicle to relitigate emissions-compliance showings already addressed when a litigation-based second extension was granted; it requires only the prior litigation-based extension and the expenditure threshold. The court also clarifies that the executive director’s authority for these extensions arises from the specific NSR rule in Chapter 116 rather than the general procedures in Chapter 50. Finally, the opinion confirms that community groups can have standing to challenge extensions when those extensions predictably enable construction that threatens concrete environmental, health, aesthetic, or religious interests.