ELR Citation: 54 ELR 20035
No(s). 15-1239 (D.C. Cir. Mar 1, 2024)

The D.C. Circuit, 2-1, granted in part and denied in part petitions to review EPA's SIP call for 35 states and the District of Columbia. A group of about half these states as well as companies subject to those SIPs sued, arguing EPA misinterpreted its authority under the CAA when it called for SIPs containing at least one of four types of startup, shutdown, or malfunction (SSM) provisions that it deemed impermissible: (1) automatic exemptions; (2) director's discretion provisions; (3) overbroad enforcement discretion provisions; and (4) affirmative defense provisions. The court found EPA abided by its authority under CAA §7410(k)(5). As for EPA's decision to issue the call for the four types of SSM provisions, the court agreed with petitioners as to the automatic exemptions and director's discretion provisions and set aside the calls insofar as they rested on those; rejected petitioners' challenge to the overbroad enforcement discretion provisions and upheld EPA's final action; and agreed with petitioners as to certain types of affirmative defense provisions but rejected their challenge as to other types. It granted the petitions and vacated the SIP-call order with respect to the calls based on automatic exemptions, director’s discretion provisions, and affirmative defenses that are functionally exemptions, but denied them as to the calls based on the enforcement discretion provision and affirmative defenses against specific relief.