This case involves an effort by EPA to impose greater Clean Air Act requirements on manufacturers and fuel users. The NAM joined with other groups supporting an appeal by Luminant Generation Co. of an adverse decision from the Fifth Circuit.
The case involves the balance of power between EPA and state environmental enforcement agencies when regulating emissions from industrial process or emission control equipment during startups, shutdowns or malfunctions. During these periods, states commonly allow more lenient treatment of excess emissions from such equipment, but EPA decided to disapprove part of a Texas State Implementation Plan (SIP) that potentially excuses excess emissions during planned equipment maintenance. Companies will not be able to argue affirmative defenses to citations, making them subject to civil penalties and fines.
The dispute centers on whether Section 113 of the Clean Air Act articulates a requirement that provides a basis for EPA to disapprove the Texas plan. Our brief argued that another Section of the Act (Sec. 110) gives EPA the power to disapprove state plans that interfere with any applicable requirement of the Clean Air Act, and the lower court’s decision should be reversed on this point. We also argued that EPA’s action violates the Eighth Amendment by imposing a penalty grossly disproportionate to the offense, as well as the Fifth Amendment’s due process principles, since certain emissions during planned startups and shutdowns are unavoidable. The Texas SIP would have allowed a company to demonstrate that the offense was actually unavoidable, but the EPA action took away that defense.
On 10/7/2013, the Supreme Court declined to review this appeal.