On Wednesday, EPA announced a relatively unsurprising move with respect to its trio of rules designed to reduce power plant emissions of greenhouse gases—a delay.  Instead of early June, EPA says to expect the final rules (all three of them) at the ambiguous time of “summer,” which theoretically could extend into September.

A key defense to violations of the Clean Air Act may no longer be available for excess emissions during unavoidable malfunctions.  EPA’s current policy is that civil penalties are not appropriate if the violation was unavoidable, so long as the source can prove it did everything possible to manage the situation properly.  However, the D.C. Circuit just rejected EPA’s authority to provide an affirmative defense for excess emissions that occur due to a malfunction.  The decision, Natural Resources Defense Council v. EPA, largely upheld EPA’s cement MACT standard in the face of numerous challenges, but the court’s decision to eliminate EPA’s affirmative defense for malfunctions may have much broader implications for all facilities regulated under the Clean Air Act.

On April 15, 2014, one year and one day before the compliance deadline, the U.S. Court of Appeals for the D.C. Circuit fully upheld EPA’s Mercury and Air Toxics Standards (MATS).  As a result, all existing coal- and oil-fired  electric utility units will be required to meet specific, numeric emission limits for mercury, particulate matter, and acid gases next year.

In a decision released Tuesday, the D.C. Circuit held that an electric utility industry group could not challenge an EPA rule because it did not raise the relevant issues during the public comment period.  That result may seem unremarkable.  However, the remarkable aspect of the decision is that the group had no opportunity to comment because the issues of concern were not included in EPA’s proposed rule—EPA inserted them into the final rule without warning.  Nevertheless, the Court held that the industry group’s failure to comment precluded any challenges to those new aspects of the rule.

Back in July, the D.C. Circuit vacated the Biogenic CO2 Deferral Rule, in which EPA exempted CO2 emitted by biological materials from its new greenhouse gas permitting program.  Normally, a “vacatur” is deadly for a rule – once a rule is vacated, courts must pretend as though it never existed at all.  But the D.C. Circuit withheld the issuance of its “mandate” for the vacatur of the Deferral Rule to allow time for the parties to file any petitions for rehearing.  As a result, the rule is still legally effective, in spite of the court’s decision in July to vacate it.

At the end of last week, EPA Region 6 released a proposal that would require Oklahoma to revise its state air quality regulations regarding startup, shutdown, and malfunction events, referred to as “SSM.”  The proposal is noteworthy because it comes just a few weeks before EPA has promised to finalize a similar proposal that applies to 36 states, including Oklahoma.

Last week, the D.C. Circuit upheld EPA’s 2008 ozone standard of 75 ppb, although it remanded the agency’s decision to set a secondary standard at exactly the same level.  It may seem strange for the court to take five years to issue its decision on these ozone standards, but the court was marking time while EPA proposed to lower the standard to between 60 and 70 ppb, only to have that proposal rejected by the White House in light of plans to re-evaluate the standard whole cloth in 2013.