After a series of losses in key air cases, including United States v. DTE Energy in the Eastern District of Michigan and Summit Petroleum Corporation v. EPA in the Sixth Circuit, EPA announced a planned policy revision to limit the applicability of such adverse judicial decisions to only those states within the court’s jurisdiction. Specifically, EPA intends to revise its regional consistency policy in 40 CFR Part 56, which requires “fair and uniform application” of the Clean Air Act across EPA’s regional offices, “to allow an exception for judicial decisions.” EPA intends to issue a proposed rule revising to the regional consistency policy by August 2015.
EPA’s actions appear to be based on the D.C. Circuit’s May 2014 decision in National Environmental Development Association’s Clean Air Project v. EPA, in which the court held that the Summit Directive violated EPA’s regional consistency policy. The Summit Directive was a 2012 policy document in which EPA stated that the Sixth Circuit’s Summit Petroleum decision would not apply outside the Sixth Circuit. The D.C. Circuit offered a number of solutions to EPA, including revising its “uniformity regulations to account for regional variances created by a judicial decision or circuit splits.” EPA apparently intends to follow the D.C. Circuit’s recommendation, although EPA’s proposal will likely be met with significant industry opposition.