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A Court-Side Seat: A Poultry Defense, a Houston Highway and a CERCLA Consent Decree that Won’t Budge

By Anthony B. Cavender

February saw the customary collection of significant environmental decisions and federal regulatory offenses.
THE FEDERAL COURTS

Luminant Generation v. EPA
The court will likely be grappling with a difficult venue case regulated by the Clean Air Act (42 USC Section 7607(b)). In 2013, the U.S. Court of Appeals for the Fifth Circuit decided the case of Luminant Generation v. EPA (714 F. 3d 841), in which the court upheld the affirmative defenses which were included in the Texas State Implementation Plan (SIP) and then applied to certain unpermitted emissions from regulated sources during periods of startup, shutdown or malfunction. These defenses were challenged in the Fifth Circuit and so were reversed. At the national stage, EPA has been involved in litigation on these affirmative defenses and recently excluded by your”SIP Call” the Texas application, which has been pushed out. This EPA decision has been challenged in the DC Circuit (see Case amount 20-1115),with the State of Texas arguing as a intervenor that any issues involving Texas belong in the Fifth Circuit, and not from the DC Circuit since the Act allows regional issues to be decided at the regional federal courts.
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