Court rules EPA may attempt to block power plant construction in certain cases

A federal appeals court recently ruled that government regulators may attempt to halt construction projects at power plants if they believe the companies did not properly calculate potential increases in air pollution, according to a report from the Associated Press.

The case, United States v. DTE Energy Co., was filed when the U.S. Environmental Protection Agency sued DTE Energy (NYSE: DTE) in 2010. According to the report, DTE Energy was replacing key boiler parts at its Monroe Unit 2 coal-fired power plant without installing pollution controls, which the EPA said were required under the Clean Air Act because the company was performing a major modification of the facility. DTE, however, said the project was only routine maintenance and exempt from the requirement.

DTE performed the calculations required by the EPA and concluded there would be an increase in emissions, but the increase would result from a higher demand for electric power and not the plant modifications. The EPA, however, claimed the project would result in a significant net emissions increase, according to the AP.

Although a federal judge ruled the EPA went to court too soon, the 6th U.S. Circuit Court of Appeals overturned that decision, stating the law does not block the EPA from filing suit on suspected violations of its regulations. The court did not rule on whether DTE was in compliance with regulations, however, and returned the case to the district court.

The ruling does not allow the EPA the ability to question projections on a power plant, however, but does allow the agency to bring an enforcement action at any time to ensure the projections were “made pursuant to the requirements of the regulations.”

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