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United States v. DTE Energy Co.

ELR Citation: 43 ELR 20070
Nos. 11-2328, (6th Cir., 03/28/2013)

The Sixth Circuit held that the CAA does not categorically prevent EPA from challenging preconstruction projections of whether and to what extent emissions will increase following construction. The preconstruction projection determines whether the project constitutes a “major modification” and thus requires a permit. Below, a court ruled that preconstruction new source review enforcement is flatly unavailable if reporting requirements are met. The appellate court disagreed. A preconstruction projection is subject to an enforcement action by EPA to ensure that the projection is made pursuant to the requirements of the regulations. While the regulations allow operators to undertake projects without having EPA second-guess their projections, EPA is not categorically prevented from challenging even blatant violations of its regulations until long after modifications are made. If EPA were barred from challenging preconstruction projections that fail to follow regulations, new source review would cease to be a preconstruction review program.