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EPA faces legal challenges over recent Clean Air Act rule

The Georgia Coalition for Sound Environmental Policy and the Georgia Industry Environmental Coalition are among the groups challenging a rule under the Clean Air Act which requires states to remove civil penalty shields from their pollution reduction plans. The penalty shields are known as affirmative defense provisions, and they apply in only in certain circumstances.

While EPA initially permitted states to have such provisions for purposes of Clean Air Act compliance, the agency was successful in passing a rule disallowing them back in May. The rule was issued after the EPA found that 36 states do not adequately address deficiencies in compliance with emissions requirements during periods where the plans were either beginning to be implemented, or are shut down or malfunctioning due to unavoidable equipment malfunctions. The rule specifically requires states to remove provisions that protect facilities from being hit with civil penalties for violations in such circumstances. 

Many of the legal challenges have to do with the EPA’s authority in passing the new rule. Among the legal issues being raised by various groups are whether the EPA must first make a finding regarding the impact of compliance inconsistencies on air quality standards before taking the kind of action it did, and whether the Clean Air Act requires states to implement a continuous restriction on emissions without any exceptions. Groups in Texas are asking the court to consider whether the EPA acted arbitrarily and capriciously in finding that the state’s plan was inadequate without first demonstrating that affirmative defense provisions, in themselves, prevent states from coming into substantial compliance with requirements under the Clean Air Act.

Georgia groups have also asked the court to consider several legal questions. In our next post, we’ll consider these issues and speak a bit about the importance of environmental compliance

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