The petition for review filed by major power companies for the Supreme Court review of the U.S. Court of Appeals for the Fifth Circuit’s decision regarding Texas State Implementation Plan (SIP) under the Clean Air Act (Act) has been denied.  SIP would have provided a civil penalties defense for excess air emissions during planned startup, shutdown and maintenance activities; however, the EPA disapproved the section of the SIP creating the affirmative defense to exceedences occurring during these events. 

The Supreme Court was presented with two questions by Petitioners.  First, can the EPA, under the Act, disapprove a state plan for controlling air pollution without prior identification of how SIP would interfere with the Act.  Second, was the U.S. Court of Appeals for the Fifth Circuit correct to defer to the EPA’s analysis of the Act in upholding the disapproval of the planned activities affirmative defense.  The EPA stated there was no confusion in the courts on these issues and only three states include a planned activities affirmative defense in their SIP.

The Fifth Circuit ruled that the EPA did not act inappropriately regarding their interpretation of the Act, and the court of appeals affirmed and stated:  “the agency reasons that an appropriately crafted affirmative defense is one that is narrowly tailored to address unavoidable, excess emissions.” 

For more information regarding this topic, please contact Phillip Hoover.