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New York v. EPA

Citation: 35 ELR 20135
No. No. 02-1387, (D.C. Cir., 06/24/2005)

The court remanded portions of a 2002 U.S. Environmental Protection Agency (EPA) rule interpreting when a major stationary source undertakes a "modification," thereby triggering the Clean Air Act's new source review (NSR) requirements. EPA erred in promulgating the clean unit applicability test, which measures emissions increases by looking to whether "emissions limitations" have changed. Congress directed the Agency to measure emissions increases in terms of changes in actual emissions. EPA also erred in exempting from NSR certain pollution control projects that decrease emissions of some pollutants but cause collateral increases of others. The statute authorizes no such exception. EPA acted arbitrarily and capriciously in determining that sources making changes need not keep records of their emissions if they see no reasonable possibility that these changes constitute modifications for NSR purposes. The Agency failed to provide a reasoned explanation for how, absent such records, it can ensure compliance with NSR. Industry challenges to passages in the preambles of the 2002 rule and a 1992 rule, as well as government challenges to the implementation of the 2002 rule, are unripe for review. All other challenges to the 2002 rule were rejected.