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EPA faces legal challenges over recent Clean Air Act rule, P.2

In our last post, we began speaking about legal challenges the EPA is currently facing in connection with a recently established rule under the Clean Air Act. The rule, as we noted, requires states to cut out civil penalty shields from their pollution reduction plans. The Georgia groups who are opposing the policy raised a handful of legal issues for consideration. Some of these issues are similar to those raised by other appellants.

One issue is whether the EPA acted capriciously or illegally, or abused its discretion, in failing to demonstrate that Georgia’s State Implementation Plan—the regulatory plan the state has put in place to comply with clean air standards—is “substantially inadequate” to meet the requirements of the Clean Air Act. Another issue is whether the EPA engaged in unauthorized interference with Georgia’s authority to manage its own compliance with the Clean Air Act. 

On the issue of affirmative defenses, the coalition is challenging whether the EPA acted improperly in failing to provide a reasonable justification for insisting on the elimination of all affirmative defenses for unavoidable emissions in certain specific circumstances. There are other issues raised on the issues of whether Georgia’s SIP ensures “continuous” emissions reductions, and whether the EPA acted properly in issuing a SIP call against Georgia and other states. An SIP call is an action by the agency in which it calls upon a state to rework its implementation plan and resubmit it for approval. Before a SIP call can be issued, there must be a finding of inadequacy in terms of Clean Air Act compliance. The issue for the Georgia groups is that the EPA never identified any emissions limitation which failed to meet federal requirements.

It will certainly be interesting to see how the legal challenges against the EPA progress. No doubt, there are some rather technical questions involved, but these are the types of issues that are important when it comes to compliance with federal environmental law. We’ll keep readers updated of developments in the legal challenges.

Sources:

United States Court of Appeals for the District of Columbia Circuit, Georgia Coalition for Sounds Environmental Policy and Georgia Industry Environmental Coalition v. United States Environmental Protection Agency.

Environmental Protection Agency, Final Action on: State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA’s SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction. 

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