(94a) New Source Review and Recent Judicial Developments

During the last two years, federal courts have re-shaped the New Source Review (NSR) regulatory landscape. In 2007, the Supreme Court decided Environmental Defense v. Duke Energy, upholding the historical application of the actual-to-potential NSR modification test. In 2006 the D.C. Circuit decided New York v. EPA I, upholding EPA's 2002 NSR Reform rules with respect to the actual-to-projected actual modification test, the 10-year baseline calculations, the demand growth exclusion, Plant-wide Applicability Limits, but overturned the Clean Unit and Pollution Control Project Exclusions. Also in 2006, the D.C. Circuit decided New Your v. EPA II, overturning EPA's Equipment Replacement Provision (ERP). In the wake of New York v. EPA II, the courts remain divided on how to interpret the NSTR modification exclusion for routine maintenance, repair and replacement (RMRR). \

This presentation would summarize and explain these judicial developments. It would also discuss the use and uncertainties in the application of the NSR Reform rules at the plant level, and the uncertainties facing plant in the application of the RMRR exclusion