Title V Emergency Affirmative Defense Provision Reinstated by DC Circuit Court

By Lucas J. Narducci, Michael C. Ford, and Amanda A. Reeve

The DC Circuit Court of Appeals decided on September 5, 2025, that the U.S. Environmental Protection Agency (EPA) erred in implementing its 2023 Final Rule on “Removal of Title V Emergency Affirmative Defense Provisions From State Operating Permit Programs and Federal Operating Permit Program” (2023 Final Rule).¹

For over 30 years, 40 C.F.R §70.6(g) provided regulated entities the ability to demonstrate that an occurrence of an emission standard violation was due to “sudden and reasonably unforeseeable events beyond the control of the source, including acts of God, which situation requires immediate corrective action to restore normal operation, and that causes the source to exceed a technology-based emission limitation under the permit, due to unavoidable increases in emissions attributable to the emergency.” However, the 2023 Final Rule completely removed this provision.

EPA reasoned that the emergency affirmative defense was “inconsistent with the EPA’s interpretation of the enforcement structure of the Clean Air Act…in light of prior court decisions …”² Specifically, the EPA “maintained the affirmative defense encroached on the judiciary’s statutory authority to assess civil penalties,” and that “defense functioned as an exemption that rendered emission limitations non-continuous in violation of the Clean Air Act.”³ However, the Petitioners argued that the Final Rule “rests entirely on erroneous legal justifications.” The DC Circuit agreed.⁴

The Court stated that “a complete affirmative defense, like the one at issue here, is permissible because it relates to the antecedent question of liability and therefore does not impinge on the judiciary’s authority to award ‘appropriate civil penalties.’ 42 U.S.C. §7604(a).”⁵ The Court further stated that while an “affirmative defense allows a defendant to avoid liability…it does not alter the underlying legal requirements …. [that] the Title V affirmative defense for emergencies does not lift applicable standards … [and since] the emission standards are never lifted, they apply ‘on a continuous basis’ as required by the Clean Air Act. 42 U.S.C. §760d(k).”⁶

The Court agreed with the Petitioners that the EPA’s reasoning for implementing its 2023 Final Rule “cannot be squared with the text of the Clean Air Act or [the Court’s] precedents …” and that the 2023 Final Rule is “unreasonable and not in accordance with the law.”⁷ The Court’s Opinion reversing the 2023 Final Rule so that the emergency affirmative defense is reinstated is a significant victory for regulated entities.