United States v. DTE Energy Co. (2013)

Reg. 32,314 , 32,327 (July 21, 1992), which is quoted in our first opinion: “[W]hether the [demand growth] exclusion applies ‘is a fact-dependent determination that must be resolved on a case-by-case basis’ ” DTE I, 711 F.3d at 646 (emphasis added).

And the Sixth Circuit has determined that “[w]hile EPA does presume that emissions increases after five years are unrelated” to modification, “that presumption can be overcome, for example, by demonstrating that the pre[modification] facility could not handle such an increase.” United States v. DTE Energy Co., 711 F.3d 643, 651 (6th Cir. 2013).

United States v. DTE Energy Co., 711 F.3d 643, 649 (6th Cir.2013) (“Over several decades of regulation and litigation, EPA has created a system intended to protect air quality, conserve environmental agencies’ scarce resources, and minimize costs for regulated industries.”); N.C., ex rel.

Under the 2002 amendments, PSNH argues, it was not required to obtain permits for the turbine projects as CLF claims, but could simply provide DES with a projection of the emissions increases that would result from those projects, and then monitor and report its emissions to DES for ensuing five years, see DTE Energy, 711 F.3d at 643 (describing this framework)–-which it did.

As the environmental groups state, new sources of emissions are independently regulated by the Clean Air Act. 42 U.S.C. §§ 7411 , 7475, 7503; see United States v. DTE Energy Co., 711 F.3d 643, 644-45 (6th Cir.2013) (“New Source Review [under the Clean Air Act] forbids the construction of new sources of air pollution without a permit”).

See, e.g., United States v. DTE Energy Co., 711 F.3d 643 , 644 n. 1 (6th Cir.2013) (noting that Monroe, Michigan, "falls into both categories depending on the pollutant”). 6 . .