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ARTICLE · 09 SEPTEMBER 2025

D.C. Circuit Restores Title v Emergency Defense

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In its September 5, 2025, opinion in SSM Litigation Group v. EPA, the U.S. Court of Appeals for the D.C. Circuit overturned EPA's 2023 removal of the Title V affirmative defense for emergencies.

United StatesEnvironment
Greg L. Johnson
Greg L. Johnson
Clare Bienvenu
Clare Bienvenu
Emily von Qualen
Emily von Qualen
Colin North
Colin North
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In its September 5, 2025, opinion in SSM Litigation Group v. EPA, the U.S. Court of Appeals for the D.C. Circuit overturned EPA's 2023 removal of the Title V affirmative defense for emergencies.

The Court found that EPA's justifications for removing the defense, namely that:

  • the defense unlawfully encroached on the judiciary's role under the Clean Air Act to assess penalties for violations of emission limitations, and
  • the defense is effectively an exemption from applicable emission limitations and therefore renders those limitations not "continuous" in violation of the Clean Air Act,

were erroneous, with the court reversing the 2023 recission of the defense.

Restoring the Title V emergency defense will keep permittees who exceeded emission limits as a result of emergencies from having to rely on agency or judicial discretion to avoid penalties for violations caused through no fault of their own.

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