A panel of federal judges appeared split during Friday arguments over a key policy shift in EPA’s New Source Review air pollution permitting program enacted during President Donald Trump’s first term.
The rule, which made it easier for facilities to avoid costly permitting requirements when making upgrades or other changes to their equipment, was part of a number of smaller changes made to air permitting rules under Trump that had been long sought by industry.
Judge Bradley Garcia, a Biden appointee on the U.S. Court of Appeals for the District of Columbia Circuit, said he was concerned that EPA had created a nonbinding standard for what constitutes a “project” under the rule, which could lead to manipulation.
“Why is acknowledging a problem [and] creating this standard the solution, but not acknowledging that it doesn’t bind anyone — why isn’t that arbitrary and capricious?” he asked a Justice Department attorney.
