As first reported in the Fall 2015 issue of The Climate Report, a coalition of energy companies, industry organizations, and states ("Petitioners") challenged a final rule promulgated by U.S. EPA in 2015 requiring 36 states to revise their State Implementation Plans ("SIPs") under the Clean Air Act ("CAA") to disallow automatic exemptions from emissions limits during periods of equipment startup, shutdown, or malfunction ("SSM"). See Walter Coke, Inc. v. EPA, No. 15-1166 (D.C. Cir.).
Since 2015, the parties have completed briefing in the United States Court of Appeals for the District of Columbia Circuit. Petitioners argued that the SSM rule exceeded EPA's authority and improperly overrode state decisions regarding the control measures necessary and appropriate to achieve CAA objectives. In particular, they contended that the "broad mandate" enshrined in the rule was not based any new statutory requirement, mandated by any court decision, or tied to any demonstrated air quality problem. Petitioners further asserted that EPA had run afoul of the CAA by failing to make a "finding" based on "available information" that the SSM provisions in the SIPs rendered the SIPs "substantially inadequate" or that revisions to the SIPs were "necessary to correct such inadequacies."
EPA, for its part, asserted that the SSM rule was necessary to correct specific SIP provisions that violated "bedrock principles of the CAA." EPA argued that provisions automatically exempting emissions during SSM events, for example, violated the CAA's requirement that emission limitations be continuous and enforceable. EPA further noted that even where the exemption was discretionary and not automatic, exempting SSM emissions contravenes the CAA because a state cannot revise EPA-approved emission limitations unless it complies with the CAA's procedural and substantive requirements for revising SIPs.
On April 17, 2017, the D.C. Circuit scheduled oral argument for May 8, 2017. The next day, however, EPA moved to postpone oral argument, arguing that additional time was necessary for it to determine whether the SSM rule "should be maintained, modified or otherwise reconsidered," in light of the turnover in Administration. Environmental groups, intervenors in the consolidated petitions, opposed the motion on the grounds that EPA had failed to demonstrate the requisite "extraordinary cause" for postponing argument.
On April 25, 2017, the D.C. Circuit granted EPA's motion, removed the petitions from the May 8, 2017, oral argument calendar, and held the challenges in abeyance pending further order. EPA is required to provide the court updates on the status of EPA's review of the SSM rule every 90 days.
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