Saturday, May 4, 2013

New York v. EPA case brief

New York v. EPA case brief
413 F.3d 3 (D.C. Cir. 2005)

CASE SYNOPSIS: Petitioners, members of industry, government, and environmental organizations, challenged the 2002 rule issued by respondent, the U.S. Environmental Protection Agency (EPA), 40 C.F.R. § 52.21, under the Clean Air Act's (CAA) "New Source Review" (NSR) program, specifically 42 U.S.C.S. § 7411.

FACTS: Industry petitioners argued that the 2002 rule interpreted "modification" too broadly, while government and environmental petitioners argued that the rule's interpretation was too narrow. The court found that EPA permissibly interpreted the CAA and did not otherwise act arbitrarily and capriciously with respect to, among other provisions, the use of past emissions and projected future actual emissions in measuring emissions increases; the use of a ten-year lookback period in selecting the baseline period for measuring past actual emissions; the use of a five-year lookback period in certain circumstances; and the Plantwide Applicability Limitations (PAL) program. However, the EPA erred in promulgating the Clean Unit applicability test, which measured emissions increases by looking to whether "emissions limitations" had changed, and it erred in exempting certain pollution control projects that collaterally increased emissions of some pollutants. Moreover, the EPA acted arbitrarily and capriciously in determining that sources making changes need not keep records of their emissions if they see no reasonable possibility that these changes constitute modifications for NSR purposes.

CONCLUSION: The court denied that petitions except that it vacated the provisions of the 2002 rule regarding the Clean Unit applicability test and Pollution Control Projects and it remanded the recordkeeping provisions to EPA. The court dismissed in part the petitions of government and industry petitioners as unripe.

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