DOJ Opts Against Seeking High Court Review Of Ruling Limiting NSR Suits

The Department of Justice (DOJ) is opting against seeking Supreme Court review of an appellate ruling that limits EPA's ability to pursue Clean Air Act new source review (NSR) enforcement actions by imposing a five-year statute of limitations on the cases. The pass by DOJ may ensure the limit applies to all NSR cases in the future. DOJ on EPA's behalf had until Dec. 20 to file a petition for a writ of certiorari asking the high court to review the U.S. Court of Appeals for the 7th Circuit's decision in United States et al. v Midwest Generation, et al., in which the court rejected the agency's argument that NSR air permitting violations are "ongoing" and not subject to the five-year limit to file enforcement suits. A spokesman for DOJ confirms the department did not seek high court review.

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