A federal district court's ruling dismissing the bulk of an EPA Clean Air Act new source review (NSR) enforcement action against a Texas utility underscores the dilemma the agency faces in deciding whether to appeal a series of losses in NSR cases, observers say, as adverse decisions on appeal could further limit EPA's NSR enforcement. EPA has lost several federal district court cases that claimed violations of the strict NSR permitting process. The recent Texas federal district court decision reinforces a strict statute of limitations approach that sets a time limit on pursuing such actions, while a federal district court in Michigan issued a ruling in 2011 that faulted the agency for pursuing NSR cases based on pre-construction projected emissions associated with plant upgrades.
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