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. While the 6th Circuit said no second-guessing, it then allowed EPA to – you guessed it – second-guess DTE Energy’s projections. (Does your head hurt yet?)
Now Scott Pruitt has leapt into the fray. Last week, he issued a memorandum stating that:
When a source owner or operator performs a pre-project NSR applicability analysis in accordance with the calculation procedures in the regulations, and follows the applicable recordkeeping and notification requirements in the regulations, that owner or operator has met the pre-project source obligations of the regulations, unless there is clear error (e.g. the source applies the wrong significance threshold). The EPA does not intend to substitute its judgement for that of the owner or operator by “second guessing” the owner or operator’s emissions projections.
So far, so good. Of course, with this administration, it should not be a surprise that, even when they do something right, they get it wrong. In classic regulation by guidance fashion, the Pruitt memorandum has a major caveat:
This document is not a rule or regulation, and the guidance it contains may not apply to a particular situation based upon the individual facts and circumstances. This memorandum does not change or substitute for any law, regulation or other legally binding requirement and is not legally enforceable. This memorandum is not final agency action, but merely clarifies the EPA’s current understanding regarding certain elements of the NSR regulations.
I’m sorry, but isn’t this just another example of making regulatory changes by guidance and pretending it isn’t so in order to avoid judicial review? It’s precisely what this administration has said its against. EPA’s interpretation of the NSR rule, until December 7, 2017, was that it had the right to second guess generators’ pre-construction projections of post-construction actual emissions. Now, EPA is saying that it won’t do that. This seems a fairly significant shift in policy to me.
EPA clearly does not want anyone second guessing its decision to second guess its policy on second guessing.