New York v. EPA (2005)

Multi-state challenge to 2002 EPA rule amending the New Source Review (NSR) program and narrowing the definition of “modification” to exclude certain sources from NSR requirements.

Citation: New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005)

Topic: Air Pollution

Type of action: Lawsuit v. Federal Government

States involved: California, Connecticut, Delaware, District of Columbia, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Wisconsin

Summary:  State and environmental petitioners challenged a variety of policies in a 2002 EPA rule modifying the New Source Review (NSR) program. Under the NSR program, major stationary sources undertaking modifications must obtain pre-construction permits, as must major new sources. The 2002 rule interpreted the concept of a “modification” more narrowly than previous EPA rules and excluded a greater number of sources from NSR requirements.

Petitioners argued that the changes in the 2002 rule were inconsistent with the text of the Clean Air Act. They successfully challenged provisions giving sources discretion to determine if tracking post-modification emissions are necessary, exempting “Pollution Control Projects” from the definition of “modification,” and exempting modifications made to sources that satisfied “Clean Unit” requirements which were not based on emissions levels. Petitioners also challenged the terms of the lookback period, the removal of source-specific emission baselines, the exclusion of unrelated demand growth from emissions projections, and the totality of the Plantwide Applicability Limitations exemptions, but were unsuccessful.

Key documents:

• Decision
• Petitioners’ Brief

Additional resources:

• Casey Roberts, New York v. EPA: State Response to a Federal Regulatory Rollback, 33 Ecology Law Quarterly 613 (2006)