DC Circuit Reverses EPA Removal of Sudden Emission Protections

The EPA couldn’t justify scaling back startup, shutdown, and malfunction liability shields in Title V air permitting rules, according to a Friday judgment from the US Court of Appeals for the District of Columbia Circuit.

The panel granted the petition from the SSM Litigation Group, a network of trade groups and businesses opposed to Environmental Protection Agency moves to systematically remove clean air exemptions that shield companies from liability after accidental emission releases from malfunctions and other sudden events.

“EPA rescinded a thirty-year-old affirmative defense on the ground that it was unlawful under the Clean Air Act. EPA’s reasoning, however, cannot be squared with the text of the Clean Air Act or our precedents,” according to the opinion authored by Judge Neomi Rao.

The provision at issue, also called affirmative defense, was removed from Title V permitting regulations by the agency in July 2023. It is one of many clean air actions that is on the chopping block under President Donald Trump’s deregulation plans.

The EPA under former President Joe Biden argued the provision is inconsistent with how the agency, at the time, interpreted the enforcement structure under the Clean Air Act.

But the panel agreed with petitioners that the EPA’s removal was arbitrary and capricious, and relied on a faulty legal explanation.

“Because EPA offered no independent policy rationale, its rescission regulation was unreasonable and not in accordance with law,” the opinion said.

Judges Douglas H. Ginsburg and Justin R. Walker also sat on the panel.

SSM Litigation Group is represented by FryeLaw PLLC.

The case is SSM Litig. Grp. v. EPA, D.C. Cir., No. 23-01267, Decision 9/5/25.