Federal judges have resurrected a legal shield for industries that violate Clean Air Act permitting requirements because of excess emissions stemming from plant emergencies.
EPA had defined emergencies as “reasonably unforeseeable events” outside of the source’s control. How often those events occur is poorly tracked. But in a brief filed on the agency’s behalf, the Sierra Club and other environmental groups wrote that they can release enormous amounts of dangerous air pollution, while affirmative defenses create “a perverse disincentive to proper maintenance.”
In the unanimous opinion issued Friday, a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit found that EPA overstepped two years ago in eliminating such a defense for violations from its regulations for major pollution sources that hold Title V operating permits
That decision was based on “erroneous legal justifications,” Judge Neomi Rao wrote in the opinion in agreeing with a coalition of industry trade groups that it was therefore arbitrary and capricious.
Title V permits, so called because of the applicable section in the 1990 Clean Air Act amendments, set enforceable emission limits for refineries, steel mills and other large air pollution sources.
EPA carved out the break for emergencies soon after the amendments were passed. As grounds for rescinding it in 2023, the agency mainly found that it unlawfully encroached on judges’ authority to assess civil penalties.
That rationale has now been “foreclosed,” Rao wrote, by the D.C. Circuit’s ruling last year in a separate case that dealt with an array of exemptions for excess emissions stemming more broadly from plant startups and shutdowns as well as equipment breakdowns.
In that ruling, the panel found that a true affirmative defense operates as a complete shield for Clean Air Act liability, “as does the Title V defense for emergencies,” Rao wrote. She contrasted that to a separate type of defense that “merely ‘precludes certain remedies after a source has violated an emission rule.’”
“Because the Title V affirmative defense is a complete defense to liability, not a limitation on judicial remedies, EPA’s primary rationale for its rescission was erroneous,” she concluded.
Rao, named to the D.C. Circuit bench by President Donald Trump in his first term, previously served as the White House regulatory chief during an earlier part of that tenure.
Joining her in the opinion issued Friday were Judge Justin Walker, another Trump appointee, and Senior Judge Douglas Ginsburg, placed on the bench by President Ronald Reagan.
The opinion came in a lawsuit brought by the SSM Litigation Group, whose members include the American Petroleum Institute and the Corn Refiners Association. During January oral arguments on the suit, Walker and Rao had both questioned whether the group had the legal standing to bring the litigation, given that its filings lacked any mention of a specific facility with a stake in the outcome.
But because the group includes associations whose members are directly regulated under Title V and were thus affected by the rollback of the liability shield, the opinion said, “that injury is redressable by an order of this court.”
