A federal appeals court has held that a lower court improperly dismissed a U.S. EPA enforcement action against DTE Energy Corp. (DTE) regarding DTE’s projection of emissions following renovations of electric utility steam generating units at its plant in Monroe, Michigan. In a 2-1 split, the three-judge panel of the U.S. Court of Appeals for the Sixth Circuit reversed a district court ruling that held that U.S. EPA was precluded from challenging DTE’s determination that the project did not require a Clean Air Act permit because it would not result in an increase in emissions. The district court had found that because DTE had satisfied U.S. EPA notification and recordkeeping requirements, U.S. EPA could bring an enforcement action only if the actual annual emissions after the project significantly increased. Significantly, the appeals court agreed with the lower court’s key ruling that whether a permit is required would be determined by the actual emissions after the project, rather than by DTE’s pre-construction projection of emissions. The court specifically refused to endorse U.S. EPA’s contention that U.S. EPA was entitled to challenge the accuracy of DTE’s emission projections. However, the court did agree with U.S. EPA’s argument that it was entitled to bring an enforcement action before construction commenced “to ensure that the projection is made pursuant to the requirements of the regulations.” Therefore, although the lower court’s ruling was “largely correct,” the appeals court vacated the dismissal of U.S. EPA’s action and remanded the case for further proceedings. The dissent argued that the case was moot because the issue of the correctness of DTE’s emission projection was resolved by the fact that emissions after the project have decreased. Moreover, the dissent argued that the majority opinion was self-contradictory because on the one hand the majority acknowledged that DTE was not required to obtain U.S. EPA approval of its emission projections while on the other hand the majority held that U.S. EPA could seek a preliminary injunction to stop the project, if EPA disagreed with procedures used to make the projections. “The only difference between the scheme that the majority endorses and the prior-approval scheme (that the majority purports to reject) is which party is the plaintiff and which the defendant,” stated the dissent. United States v. DTE Energy Co., No. 11-2328 (6th Cir. Mar. 28, 2013).