DC Circuit Court of Appeals: EPA Cannot Create an Affirmative Defense through the Rulemaking Process

Cement PlantFrom the DC Court of Appeals, we have NRDC vs. EPA. The NRDC challenged the EPA’s 2013 cement emission standards rule as well as the EPA’s decision to create an affirmative defense for private civil suits in which plaintiffs sue sources of pollution and seek penalties for violations of emission standards. See Cementing Emission Standards.

In a previous decision, the Court considered EPA’s first attempt to create emission standards for the cement industry, and found the agency’s action arbitrary and capricious. See Portland Cement Association v. EPA, 665 F.3d 177 (D.C. Cir. 2011). Following the ruling, EPA went back to the drawing board and developed the emission standards at issue here, the 2013 Rule. Several environmental organizations, including the Natural Resources Defense Council and the Sierra Club, petitioned for review of the 2013 Rule, arguing primarily that certain aspects of the Rule contravene the Clean Air Act. They also challenged EPA’s decision to create an affirmative defense for private civil suits in which plaintiffs sue sources of pollution and seek penalties for violations of emission standards. EPA’s affirmative defense would be available to defendants in cases where an “unavoidable” malfunction had resulted in impermissible levels of emissions. The Court conclude that the emissions-related provisions of EPA’s 2013 Rule are permissible but that the affirmative defense for private civil suits exceeds EPA’s statutory authority. The court granted the petition in part and vacated the portion of the Rule pertaining to the affirmative defense. All other aspects of the petition were denied.

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