Last week, the 6th Circuit Court of Appeals reversed – for the second time – a District Court decision granting summary judgment to DTE Energy in the United States’ case alleging that DTE Energy had violated EPA’s NSR regulations. According to the 6th Circuit, EPA has authority to bring an enforcement action against DTE Energy, notwithstanding that the regulations don’t provide for EPA review of DTE Energy’s emissions projections prior to construction and also notwithstanding that the project did not in fact result in a significant net emissions increase.… More
Tag Archives: “United States v. DTE Energy”
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
On Thursday, in United States v. DTE Energy Company, the 6th Circuit Court of Appeals revived EPA’s enforcement action against DTE energy for alleged NSR violations at DTE’s Monroe Power Plant. As the dissent notes, it may be a hollow victory.
The facts trace a familiar NSR enforcement case trajectory. In 2010, DTE commenced a $65 million maintenance project at Monroe,… More