Title V of the Clean Air Act requires large industrial facilities to measure and limit their air pollution emissions. In addition, a permit issued to a facility that is already violating an air pollution limit must include a “compliance schedule” consisting of enforceable measures designed to bring the facility into compliance.

Prior to issuing permits to the Huntley and Dunkirk plants—two of New York State’s biggest coal power facilities—the New York Department of Environmental Conservation (DEC) had already issued a “notice of violation” to the plant owners declaring that the plants had been violating air pollution limits for many years. Nonetheless, the DEC issued the permits without including the relevant emission limits, or a compliance schedule that would bring the facilities into compliance with those limits.

NYPIRG petitioned the U.S. Environmental Protection Agency to veto the illegal permits. When the agency refused, Earthjustice filed suit on behalf of NYPIRG in the U.S. Court of Appeals for the Second Circuit. The appeals court judge agreed with Earthjustice and ruled that Title V of the Clean Air Act requires EPA to veto the state air permits for the Huntley and Dunkirk plants because the permits fail to include requirements limiting the very pollution that prompted the state violation notices.