Fifth Circuit: Title V doesn’t allow review of NSR permit conditions – Update from Jordan Hiser & Joy

Fifth Circuit: Title V Doesn’t Allow Review of NSR Permit Conditions

May 31, 2020 | Eric L. Hiser

In a significant win for both EPA and the industrial community, the Fifth Circuit Court of Appeals, in Environmental Integrity Project v. U.S. EPA, No. 18-30384 (May 29, 2020), upheld EPA’s determination, first announced in In re PacifiCorp Hunter Energy, that “the Title V permitting process is not the appropriate vehicle for re-examining the substantive validity of underlying Title I preconstruction permits.”  The Fifth Circuit upheld EPA on Skidmore deference, which means that the court found EPA’s interpretation “independently persuasive.”  The Fifth Circuit’s holding increases the likelihood that the EPA’s interpretation may survive a change in administrations.

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