EPA revives Obama-era rule removing emergency liability protection for polluters

The Environmental Protection Agency (EPA) has resurrected an Obama-era proposal shelved during the Trump administration that would remove Clean Air Act (CAA) liability protections frequently invoked by industrial polluters.

Under the new rule, state and federal operating permits would no longer have the option to make a so-called emergency affirmative defense. This defense allowed sources that exceeded the Clean Air Act’s emissions limits to avoid liability by attributing the violation to “emergency” circumstances.

EPA Administrator Michael Regan signed the rule earlier this week, with a 45-day public comment period to follow.

“These provisions, which have never been required elements of state operating permit programs, are being removed because they are inconsistent with the enforcement structure of the CAA and court decisions from the U.S. Court of Appeals for the D.C. Circuit,” the proposed rule states.

“The removal of these provisions is consistent with other EPA actions involving affirmative defenses and would harmonize the enforcement and implementation of emission limitations across different CAA programs.”

The rule has been in limbo for years after it was originally introduced in 2016 by the Obama administration and later withdrawn by the Trump administration in 2018.

The Biden administration in October withdrew Trump-era guidance allowing state governments to create exemptions like those covered by the rule, which environmental groups praised but said should be followed up with the revival of the Obama-era efforts.

“The D.C. federal appeals court struck down this dangerous loophole for uncontrolled pollution releases as blatantly illegal in 2014,” James Pew, senior attorney and director for federal clean air practice at Earthjustice said in a statement.

“Now it’s essential for Administrator Regan to continue to lead on this issue by ending the equally unlawful loopholes for startup, shutdown and malfunction pollution that remain in many air toxics rules. In particular, Administrator Regan needs to remove them right away from EPA’s air toxics rules for the refinery, chemical, and petrochemical sectors, where they are doing serious and continuous harm to neighboring communities,” he said.