The Final Nail In the Coffin on EPA’s Enforcement Initiative Against Historic PSD Violations? The Third Circuit Agrees That PSD Violations Are Not Ongoing

Only last month, the 7th Circuit ruled that alleged violations of the Clean Air Act’s PSD requirements are not ongoing.  On Wednesday, in United States v. EME Homer Generation, the 3rd Circuit agreed.  Like the 7th Circuit, the 3rd Circuit did not really even view the question as difficult, finding the statute unambiguous and never reaching the second step of traditional Chevron analysis.

In short, the statute simply provides that:

[n]o major emitting facility . . . may be constructed [or modified] . . . unless” it meets various PSD requirements.…

Because this language does not say “constructed, modified, or operated,…” the inquiry is over.  Indeed, as the Court noted, the statute is replete with indications that the PSD provisions only address preconstruction review, and not operations.  Moreover, other parts of the statute do address operations, so that the Court was able to conclude that the omission of any reference to “operation” in the PSD requirements was intentional.  Case closed.  The current owners of the facility could not be in violation of a requirement that never applied to them.

The Court also affirmed dismissal of the claims against the former owners.  As the Court pointed out:

with time travel yet to be discovered, it is impossible to “restrain” a violation that occurred twenty years ago. Likewise, courts cannot “require compliance” from defendants who are not currently violating the Clean Air Act and who cannot violate the Act in the future because they no longer own or operate the source.

One last note – EPA used a lot of briefing space arguing that the canon that remedial statutes should be broadly construed requires deference to EPA’s interpretation.  The 3rd Circuit in turn spent a lot of time discussing canons of interpretation and rejected EPA’s view.  I find this notable, if only because those of us who have been in the business for a while are all too familiar with EPA (and parallel state agencies) taking EPA’s position here.  The argument basically boils down to “We’re the government and we’re the good guys, so we should win.”  The agencies actually had a lot of success with this argument over the years.  It’s time to consign it to the ash heap of history.

As I noted after the 7th Circuit decision, the plain reading interpretation adopted by the 7th and 3rd Circuits is precisely the kind of statutory interpretation that this Supreme Court seems to favor.  Now, I’ll go farther.  Even if DOJ were to seek Supreme Court review, it’s not obvious that they’d get it.  There is no circuit split and the issue seems to be a plain vanilla piece of statutory construction.  There may be a lot at stake for EPA, but I don’t think that the Supreme Court would say that there is anything with which it must grapple.

EPA’s enforcement initiative – for old cases – may have just ended with a whimper.

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