In my April 2, 2018, post, I asked whether the US Court of Appeals for the Fifth Circuit would put another nail in the coffin of NSR enforcement for projects completed a long time (some of them, decades) before EPA or other plaintiffs filed a complaint alleging NSR violations. A three-judge panel of the Court of Appeals answered in United States v. Luminant, No. 17-10235 (5th Cir. Oct. 1, 2018), by unanimously ruling that the statute of limitations bars civil penalties for NSR violations that allegedly occurred more than five years before the filing of the complaint. But in a 2-1 decision, the majority ruled that, while injunctive relief is also barred in those circumstances for non-government plaintiffs (Sierra Club, in this case), injunctive relief is still “available” when the government is seeking to enforce the Clean Air Act. In her dissent in part, Judge Elrod said she would have affirmed the district court’s dismissal of the case in all respects, characterizing any “injunctive” relief sought by the government as “really just time-barred penalties in disguise.” Continue Reading Yes, Said the Fifth Circuit: We Have Put Another Nail in the Coffin of NSR Enforcement for Ancient Projects; But It Is Not The Final Nail

The New Source Review (NSR) program of the Clean Air Act requires major stationary sources to go through an extensive, time-consuming, and expensive review and permitting process prior to construction. Among other requirements, such sources are required to install the best available control technologies (BACT) to reduce levels of specific regulated pollutants. The NSR program also applies to existing facilities if they are modified in ways that result in significantly increased emissions.

The pace of enforcement actions has decreased in recent years, but more than a decade-and-a-half of NSR enforcement litigation has failed to settle the main legal issues, resulting in contradictory court decisions. This lack of certainty has significant implications to how sources must evaluate compliance going forward.

To learn more, read this article originally published in Natural Gas & Electricity’s September 2018 issue. Felicia Barnes, now an associate at Beveridge & Diamond, was a contributing author.

The New Source Review (NSR) Program of the Clean Air Act (CAA) requires large new plants (in the parlance of the Act “major” “stationary sources”) to go through an extensive, time consuming and expensive review and permitting process prior to construction. Such sources are required through these permits, among other requirements, to install the best available control technologies (BACT) to reduce levels of specific regulated pollutants. The NSR program also applies to existing facilities if they are modified in substantial ways and if, as a result, emissions increase by significant amounts (these are known as “major modifications”). Continue Reading Will the Fifth Circuit Put Another Nail in the Coffin of NSR Enforcement for Ancient Projects?

The New Source Review (NSR) Program of the Clean Air Act requires large new plants (in the parlance of the act, “major” “stationary sources”) to go through an extensive, time-consuming and expensive review and permitting process prior to construction. Such sources are required through these permits, among other requirements, to install the best available control technologies (BACT) to reduce levels of specific regulated pollutants. The NSR program also applies to existing facilities if they are modified in substantial ways and if, as a result, emissions increase by significant amounts (these are known as “major modifications”).

For the first two decades of the NSR program, existing sources rarely triggered it. That is because EPA applied it in a way to be triggered only by unusual projects that would expand the capacity of the source. It is also because NSR is so time-consuming and expensive that sources generally avoided activities that would expand their capacities because they could trigger NSR.

That all changed drastically in the late 1990s. Continue Reading New Source Review for Existing Sources: Reform Is Needed–Will the New Administration Do It?