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United States v. DTE Energy Co.: A Flawed Decision With Implications for the Future Enforceability of New Source Review

June 2015

Citation: 45 ELR 10589

Issue: 6

Author: Jordan R. Schoonover

In United States v. DTE Energy Co. (DTE), the U.S. Court of Appeals for the Sixth Circuit held that EPA may use Clean Air Act New Source Review (NSR) to challenge a source’s preconstruction emission projection on narrow procedural grounds, but not to “second- guess” the projection’s substance. The decision is based on an incorrect interpretation of the NSR regulations and undermines the NSR program’s preconstruction review component. EPA should either change its regulations or clarify its interpretation of them, and adopt a litigation strategy to minimize the DTE decision’s unfavorable aspects and to persuade the Sixth Circuit to correct its errors. This will be important so EPA can continue using NSR, in concert with the proposed Clean Power Plan, to address air pollution from existing power plants.

Jordan R. Schoonover is a 2014 summa cum laude graduate of Lewis & Clark Law School who currently serves as law clerk to Senior United States District Judge Edward F. Shea.

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