In an October 16, 2017 order signed by EPA Administrator Scott Pruitt, EPA reversed a position it has held for many years — that the Agency has authority, in the context of Title V permitting, to review previous state-level decisions on the applicability of new source permitting requirements. The new policy outlined in the October 16 order removes the Title V petition to object as an avenue for citizens to seek EPA review of state preconstruction permitting decisions.
The federal appellate court hearing the appeal of EPA’s “Section 111(b)” regulations establishing a carbon capture and storage “new source performance standard” for new coal-fueled electric generating stations has today suspended the April 17, 2017 date for oral argument in the case. The U.S. Court of Appeals for the D.C. Circuit said it was suspending the oral argument date pending its consideration of EPA’s motion to hold the case in abeyance in light of President Trump’s recent Executive Order ordering EPA to review the Section 111(b) rule and the Clean Power Plan. EPA’s abeyance motion was filed Tuesday night, and today all of the State and industry petitioners challenging the rule filed a response in support of the motion. States and environmental interest groups supporting the Section 111(b) rule have not yet filed formal oppositions to the abeyance motion but have indicated they intend to do so. The court’s action does not mean that it will grant EPA’s request to hold the case in abeyance, only that it does not wish to proceed with oral argument at this time while it considers the future of the case.
The court’s action also does not affect the parallel EPA motion to hold the Clean Power Plan in abeyance. No responses to that motion have yet been filed.
Last month, the U.S. Court of Appeals for the Sixth Circuit reinstated an Environmental Protection Agency (EPA) enforcement action against DTE Energy (DTE) for violating the New Source Review (NSR) program under the Clean Air Act. This case stems from capital projects undertaken at DTE’s Monroe Power Plant in Monroe, Michigan during a three-month scheduled outage in 2010. DTE had characterized the projects performed during the 2010 outage as routine maintenance, repair and replacement activities, which, if accurate, would exempt them from NSR.