April 23, 2014

Agency Can Not Create an Affirmative Defense to Private Citizen Suits

Holland & Knight Regulatory Litigation Blog
Rafe Petersen | Christine N. Walz

In an opinion issued late last week, the D.C. Circuit held that the Environmental Protection Agency could not create an affirmative defense to private citizen suits under the Clean Air Act. 

In Natural Resources Defense Council v. EPA, several environmental organizations petitioned for review of a 2013 EPA Rule developing emissions standards for cement plants, in part because the rule created an affirmative defense for private civil suits in which plaintiffs sue sources of pollution and seek penalties for violations of emission standards.  The affirmative defense would have been available to defendants in cases where an "unavoidable" malfunction had resulted in impermissible levels of emissions. 

The D.C. Circuit held that the agency lacked the authority to create an affirmative defense in private civil suits, saying: 

The Clean Air Act] creates a private right of action, and as the Supreme Court has explained, "the Judiciary, not any executive agency, determines 'the scope' including the available remedies --'of judicial power vested by' statutes establishing private rights of action." 

As a result of this ruling, defendants in Clear Air Act suits will have to urge courts to adopt this (or a similar) affirmative defense without an EPA rule on point. 

This case may also have implications in other challenges to agency efforts to establish rules govern citizen suits established by statute. 

The D.C. Circuit also upheld EPA's emission standards for cement plants, which has been subject to several rounds of revision and litigation.    

National Resources Defense Council v. EPA, No. 10-1371 (D.C. Cir.)

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