Tag Archives: Prevention of Significant Deterioration

New US EPA Memorandum Suggests a Hand’s-Off Approach to NSR Applicability Determinations

On December 7, 2017, US EPA Administrator Scott Pruitt issued a memorandum to all Regional Administrators to offer guidance regarding the Agency’s interpretation of New Source Review (NSR) preconstruction permitting requirements in response to recent decisions from the Sixth Circuit in EPA v. DTE Energy Co.  Highlighting the lack of unanimity among the individual Sixth … Continue Reading

US EPA’s Duty to Revise PSD Rules When It Amends a NAAQS Is Not Mandatory

Earlier this month, the Ninth Circuit affirmed the dismissal of environmental groups’ Clean Air Act (CAA) citizen-suit actions against US EPA.  The court held that US EPA does not have a nondiscretionary duty to promulgate revised Prevention of Significant Deterioration (PSD) regulations when it revises a National Ambient Air Quality Standard (NAAQS). The Plaintiffs – … Continue Reading

Update on PSD/NSR Suits: EME Homer City Generation and Midwest Generation

United States v. EME Homer City Generation, L.P. A circuit court has once again rejected the government’s invitation to rehear whether a PSD violation is a one-time or continuous violation.  On December 12, 2013, the Third Circuit denied petitions from the United States, and the States of New York, New Jersey and the Commonwealth of Pennsylvania, … Continue Reading

Seventh Circuit Denies Government’s Petition for Rehearing in PSD/NSR Case

On Friday, in the United States v. Midwest Generation, LLC appeal, the Seventh Circuit denied the government’s petition for rehearing and rehearing en banc of the court’s July 8, 2013 decision affirming the dismissal of certain PSD / NSR claims.  The judges responded to the petition uniformly.  No judge in regular active service requested a … Continue Reading

Government Seeks Rehearing of 7th Circuit Decision that Failure to Obtain PSD Permit is One-Time Violation

On September 3, 2013, the United States filed a petition for en banc and panel rehearing of the Seventh Circuit’s July 8, 2013 opinion in United States v. Midwest Generation, LLC.  Resurrecting its prior arguments, the government asserts that the panel’s interpretation of the Clean Air Act’s Prevention of Significant Deterioration (PSD) requirements was “flawed” and … Continue Reading

US Court of Appeals for the Seventh Circuit Affirms Dismissal of NSR / PSD Claims on Statute of Limitations Grounds

On July 8, the landscape of new source review (NSR) / prevention of significant deterioration (PSD) case law received additional clarity when the Seventh Circuit issued its much anticipated decision in United States v. Midwest Generation LLC.  The decision, penned by Chief Judge Frank Easterbrook for a three judge panel, affirmed the lower court’s March … Continue Reading