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Media Alerts - Natural Resources Defense Council v. EPA
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April 21, 2014
  Natural Resources Defense Council v. EPA
Headline: D.C. Circuit upholds EPA emission standards for cement manufacturing but strikes down EPA's affirmative defense for violations due to unavoidable malfunction because creation of such a defense is for courts, not the agency.

Area of Law: Administrative Law, Clean Air Act

Issue Presented: Whether certain aspects of the EPA's emission standards for the cement industry contravene the Clean Air Act and whether the EPA has statutory authority to create an affirmative defense in civil suits for violations of the standards due to unavoidable malfunction.

Brief Summary: In 2010, the Environmental Protection Agency (EPA) promulgated particulate emissions standards for kilns used in the manufacture of portland cement. The 2010 Rule also created an affirmative defense, available to manufacturers in private civil suits, when violations of the standards occurred because of "unavoidable" malfunctions. The affirmative defense replaced a previous EPA policy creating an exemption from emissions limitations during malfunction events. That rule was struck down the following year, after the D.C. Circuit determined that EPA had erroneously included information in its dataset that resulted in an arbitrarily low emission standard. In 2013, the EPA corrected the data errors and promulgated a new rule raising the limit of particulate residue from .04 lb/ton to .07 lb/ton. The 2013 rule also included the affirmative defense provision, which EPA believed was necessary to resolve a "tension" between the Clean Air Act's requirement that emission standards apply at all times and the fact that emission limits may sometimes be exceeded for reasons beyond the control of the source.

The Natural Resources Defense Council (NRDC) and other environmental groups challenged the revised rule, arguing that it violated part of the Clean Air Act, which states that no standard can diminish or replace a more stringent existing standard, created pursuant to other authority. Because the 2010 rule had required more stringent standards, the NRDC claimed the 2013 rule diminished that standard. The NRDC also challenged the affirmative defense provision on the grounds that it exceeded EPA's statutory authority because it is the role of the courts to create an affirmative defense, not the EPA.

The United States Court of Appeals for the District of Columbia Circuit upheld the 2013 rule but vacated the affirmative defense provision. Applying Chevron deference, the court found the Clean Air Act sufficiently ambiguous on the meaning of other authority and held the EPA's interpretation to be reasonable. The court also found reasonable EPA's interpretation that it may consider cost-effectiveness in determining the maximum reduction in emissions. Turning to the rule's affirmative defense provision, the court found the rule inconsistent with the statutory language granting courts the jurisdiction to award appropriate civil penalties. The EPA has authority over administrative claims and may intervene in civil cases, but it is the role of the courts to determine the appropriate remedies. The court found the EPA's arguments insufficient to justify encroaching on the judiciary but indicated that the EPA could make its substantive points in favor of moderating the penalty to the court when this issue arises in that venue.

For the full text of this opinion, please visit

Panel: Kavanaugh, Srinivasan, and Edwards

Argument Date: October 24, 2013

Date of Issued Opinion: April 18, 2014

Docket Number: 10-1317

Decided: Affirmed in part, vacated in part

Case Alert Author: Joseph T. Maher, Jr.

Counsel (if known): James S. Pew, Seth L. Johnson, John Walke, Meleah Geertsma, and Avinash Kar for petitioners. Matthew R. Oakes, Robert G. Dreher, and Steven E. Silverman for respondents.

Author of Opinion: Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 04/21/2014 11:59 AM     DC Circuit  

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