The U.S. Court of Appeals for the District of Columbia Circuit largely upheld EPA's final rule promulgated on December 31, 2002 (67 Fed. Reg. 80,186), which made changes to the applicability provisions of the New Source Review program. In the June 24, 2005 State of New York v. EPA decision, the Court upheld EPA's approach to calculating baseline emissions and measuring a significant net emissions increase with the exception that it remanded the recordkeeping provisions to EPA for further explanation. The DC Circuit also agreed that EPA's plantwide applicability limitation provision was not arbitrary and capricious. The Court vacated EPA's provisions allowing "clean units" and "pollution control projects" to avoid New Source Review permitting. The Court held that these regulatory exceptions to the New Source Review program were not authorized by the Clean Air Act. The DC Circuit also rejected the industry petitioners' argument that the definition of "modification" used in the New Source Review program must have the same meaning accorded to the term "modification" in the new source performance standards regulations. Here is a copy of the State of New York v. EPA case as a pdf document.

The U.S. Court of Appeals for the Fourth Circuit concluded in a June 15, 2005 decision in U.S. v. Duke Energy Corp. that Duke Energy could not be held in violation of the Clean Air Act for New Source Review violations without a showing that past modifications to its plants increased hourly emission rates. The Court rejected EPA's position that an increase in emissions under the New Source Review program should be calculated based on an increase in a source's annual actual emissions. The U.S. District Court for the Northern District of Alabama reached a similar conclusion on June 3, 2005 in U.S. v. Alabama Power Company. Copies of the cases are included in the following pdf attachments.

U.S. v. Duke Energy Corp

U.S. v. Alabama Power Company