Earlier this month, the 5th Circuit Court of Appeals granted something of a reprieve to EPA’s New Source Review enforcement initiative. The Court first confirmed what everyone other than EPA and DOJ already knew – that failure to get a pre-construction permit is a one-time offense, so that penalty claims for alleged violations more than five years prior to filing are barred by the statute of limitations.… More
Tag Archives: Prevention of Significant Deterioration
I’ve noted numerous times that the NSR program is incomprehensible gibberish. These are scientific and objective comments. The most recent example of this is the DTE litigation, in which a one-judge minority somehow ended up writing the opinion of the 6th Circuit Court of Appeals, allowing EPA enforcement claims against DTE Energy to continue.
The question in DTE Energy is whether EPA can second-guess a generator’s pre-construction prediction of future actual emissions and bring a claim for an NSR violation – even where post-project actual emissions did not show a significant net increase in emissions. … More
Last Monday, in a comprehensive, 189-page opinion, Judge Rodney Sippel ruled that Ameren Missouri had violated EPA’s PSD regulations by failing to get permits for upgrades in 2007 and 2010 at its Rush Island facility. As I noted when Judge Sippel denied cross-motions for summary judgment, the result is not really a surprise.
Moreover, Judge Sippel’s decision is not based on any extreme reading of the law. … More
Given EPA’s recent run of defeats in its NSR enforcement initiative, it’s probably breathing a sigh of relief over last week’s decision in United States v. Ameren Missouri, regarding Ameren’s Rush Island coal-fired power plant. True, the court denied EPA’s motions for summary judgment. However, it also denied Ameren’s motions and on balance probably left EPA feeling better than Ameren about its prospects at trial. … More
Last year, after a string of defeats for EPA in its NSR enforcement initiative, I suggested that the initiative was in trouble, but that EPA was probably not yet ready to concede defeat. After the latest blow, earlier this month, EPA has to be reconsidering. I assume that EPA won’t give up completely until it has lost everywhere or the Supreme Court has weighed in, but the NSR initiative is definitely on life support at this point.… More
As we noted in 2013, two different Courts of Appeal had ruled that injunctive relief is not available in PSD/NSR enforcement cases against former owners. Both United States v. Midwest Generation and United States v. EME Homer Generation held that, because the former owner no longer controls the site, courts cannot impose injunctive relief against them. As the Court stated in EME Homer Generating:
with time travel yet to be discovered,… More
On Monday, the 9th Circuit Court of Appeals ruled that EPA does not have an obligation to amend PSD regulations for a criteria pollutant within two years of revising the National Ambient Air Quality Standard for that pollutant.
WildEarth Guardians had sued EPA under section 304(a)(2) of the Clean Air Act, which authorizes suits against the Administrator for a failure “to perform any act or duty … which is not discretionary….”
What was the basis for the alleged nondiscretionary duty? … More
The Reach of Sackett is Not Infinite: Regulated Facilities May Not Challenge EPA Notices of Violation
After the Supreme Court held in Sackett v. EPA that EPA must provide hearings to those to whom it issues unilateral administrative orders, the regulated community immediately began to wonder how broadly the ruling would sweep. It is clear that EPA’s order authority under similar statutory provisions – such as those in the Clean Air Act – is also subject to Sackett.… More
83% of a Loaf Is Better Than None: The Supreme Court Affirms EPA’s Authority to Regulate “Anyway Sources”, But Rejects Regulation of Otherwise Exempt Sources
The Supreme Court today affirmed EPA’s authority to subject 83% of greenhouse gas emissions to its PSD and Title V Operating Permit programs. However, EPA’s rationale for the rule did not fare so well, and EPA does not have authority to regulate GHG emissions from facilities not otherwise subject to PSD review or the Title V program.
To EPA and the court below, the main issue – EPA’s authority – was not difficult.… More
Last Friday, EPA lost another NSR enforcement case. Not only that, but this was a case EPA had previously won. As we noted last August, Chief Judge Philip Simon of the Northern District of Indiana, had previously ruled that the United States could pursue injunctive relief claims against United States Steel with respect to allegations by EPA that US Steel had made major modifications to its plant in Gary,… More
Yes, Virginia, NSR Really is a Preconstruction Permitting Program: Another NSR Enforcement Case Fails on Statute of Limitations Grounds
The trend of cases holding that the NSR provisions of the Clean Air Act constitute a one-time preconstruction review requirement got stronger earlier this month, as the decision in Sierra Club v. Oklahoma Gas and Electric Company dismissed claims by the Sierra Club related to facility modifications that occurred more than five years prior to entry of a tolling agreement between the parties. The decision may not break any new ground,… More
NSR Emissions Projections — Finally, An Area Where It is the Regulated Entity Which Is Entitled to Deference
Last spring, the 6th Circuit Court of Appeals ruled that when power plant owners compare actual emissions to projected future actual emissions for the purpose of determining whether a project is subject to the Clean Air Act’s NSR provisions, EPA may bring an enforcement action if the operator does not “make projections according to the requirements for such projections contained in the regulations.” At the same time, however,… More
As I have previously noted, the government’s record in NSR enforcement cases has been going downhill, particularly with important defeats before the 3rd and 7th Circuits’ Courts of Appeals. The latest governmental defeat came late last week, in Pennsylvania v. Allegheny Energy, when Chief Judge Conti granted judgment for the defendants on claims alleging both NSR and NSPS violations.… More
Last spring, Robby Sanoff complained in this space about the problem resulting from appellate courts’ refusal to give appropriate discretion to district judges in performing their gatekeeping function under Daubert. As Robby put it:
The difference between “shaky but admissible” and unreliable and inadmissible evidence would seem to be entirely in the eye of the beholder.
More on Old NSR Claims: Injunctive Relief Remains Available Against Original Owners Foolish Enough Not to Have Sold
As we noted last week and last month, the 3rd and 7th Circuits have ruled that violations of the obligation to undertake NSR review prior to implementing major modifications are not continuing, but are instead one-time violations occurring at the time the facilities undertake the modification. These holdings meant that EPA could not pursue either former owners – because they no longer control the facilities – or current owners – because they never violated the statute and have no ongoing obligation to correct the former owner’s violation.… More