Mere days after a U.S. Environmental Protection Agency memorandum brought the case back into the spotlight, the U.S. Supreme Court declined to take up a legal challenge related to modifications made to DTE Energy Co.'s Monroe power plant.
At issue is a $65 million overhaul of Monroe Unit 2 that DTE conducted in 2010. The Obama-era EPA contested the preconstruction emissions projections associated with the project and said the new source review, or NSR, program should have applied even though DTE had concluded otherwise. Under that program, an emissions threshold acts as a trigger for when tougher control requirements apply to a power plant modification.
"DTE improperly dismissed its own projection showing that emissions would increase by thousands of tons per year after the overhaul and argued that an enforcement action could not proceed until after a pollution increase actually occurred," the Sierra Club and Earthjustice explained in a Dec. 11 release.
The extremely complex matter has been litigated for years, with the U.S. Court of Appeals for the 6th Circuit twice rejecting DTE's arguments on the grounds that the Clean Air Act was designed to prevent emissions increases rather than regulate them after they occur. The environmental groups, which intervened in the cases, said those court decisions cleared the way for the EPA to pursue an enforcement action against DTE Energy. The 6th Circuit most recently denied a request that it review the matter for a third time.
Separate from the legal matter, the EPA on Dec. 7 clarified the Trump administration EPA's stance on the NSR program in a memo that the environmental groups say upends efforts to correct "excessive air pollution" from the Monroe facility. The EPA said it will not second guess companies' preconstruction analyses of emissions increases that could result from specific modifications so long as those analyses complied with all procedural requirements of the Clean Air Act and contain no obvious error. That position will be in place as the EPA reviews the NSR program with the ultimate goal of reforming it.
The memo cited the DTE case, noting that the EPA has wide discretion to pursue enforcement actions and suggesting that in the future it will not base enforcement actions simply on the fact that a facility's preconstruction analysis ultimately was found to be incorrect.
The environmental groups said the position the EPA took in its memo represents a "180-degree turn" on the agency's previous approach to the NSR program and an attempt to "adopt DTE's rejected litigation position as the agency's new approach to NSR nationwide." They assert that the memo, which was issued without any notice or opportunity for public comment, essentially says the agency will not seek enforcement actions unless and until air pollution increases above the NSR threshold as a result of a project, even when the preconstruction analysis is obviously faulty.
"The Supreme Court's welcomed decision not to further engage with DTE's rejected litigation position makes the Pruitt EPA's adoption of that position even more appalling," said Earthjustice Managing Attorney Shannon Fisk.
John Walke, director of the Natural Resources Defense Council's climate and clean air program, also raised concerns about the EPA's adoption of DTE's legal argument because of the recent installment of William Wehrum as the agency's new assistant administrator for the Office of Air and Radiation. Wehrum's previous law firm, Hunton & Williams, is representing DTE in the legal matter.
"The Trump EPA enforcement retreat amounts to permission for industrial polluters to commit fraud and make false projections about their increased emissions, so long as those projections are 'procedurally' adequate — even if they are substantively bogus and ultimately harmful to air quality," Walke asserted.
The EPA did not return requests for comment Dec. 12 as to whether Wehrum advised Administrator Scott Pruitt on the memo, but it previously defended the policy as a way to provide certainty to facilities as they plan projects that could reduce air emissions.
In a statement, DTE Energy spokeswoman Stephanie Beres said the company is disappointed in the Supreme Court's decision to decline review, but said the company still expects to prevail on the merits in the 6th Circuit.
"We are in full compliance with all [NSR] requirements, as the Monroe power plant is one of the cleanest power plants in the country, operating with best available emissions control technology on all four units," Beres said. While DTE is transitioning its fleet to cleaner sources of energy, Beres said Monroe is a critical source of reliable, affordable power for Michigan customers.
