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DC Circuit Upholds "Reasonable Possibility" Test, March 5, 2021 Eric L. Hiser

In a 2-1 decision in New Jersey v. EPA, released on March 5, 2021, the District of Columbia Circuit Court of Appeals (DC Circuit) held that EPA did not act “arbitrarily and capriciously” in setting the “reasonable possibility” standard that triggers additional NSR recordkeeping. In reaching this conclusion, the DC Circuit rejected challenges to New Jersey’s standing to bring the lawsuit and then, in turn rejected New Jersey’s claims that EPA had failed to adequately consider enforcement issues arising from the alleged vagueness of the reasonable possibility standard and possible underestimation of emissions. Accordingly, the DC Circuit upheld the current regulation.

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