Rescission of Title V Emergency Affirmative Defense Rule
Key claim: The EPA is rescinding its 2023 rule that removed emergency affirmative defense provisions from Title V operating permit programs, reinstating those provisions as required by a DC Circuit court decision.
Abstract
(Rule · Environmental Protection Agency) The U.S. Environmental Protection Agency (EPA) is rescinding a 2023 final rule titled “Removal of Title V Emergency Affirmative Defense Provisions From State Operating Permit Programs and Federal Operating Permit Program” (“2023 Affirmative Defense Rule”). The 2023 Affirmative Defense Rule removed emergency-related affirmative defense provisions from Federal regulations governing title V operating permit programs. The EPA is taking this final action in response to a September 5, 2025, decision of the U.S. Court of Appeals for the District of Columbia (DC) Circuit which reversed the EPA’s 2023 Affirmative Defense Rule. This rescission is necessary to carry out the court’s mandate and reinstates the emergency-related affirmative defense provisions as they existed in the Code of Federal Regulations (CFR) before promulgation of the 2023 Affirmative Defense Rule.
Why this matters
The Title V emergency affirmative defense governs whether sources can escape penalties for exceedances caused by genuine emergencies, directly shaping enforcement exposure across permitted industrial facilities. EPA’s rescission — driven by a D.C. Circuit mandate rather than a policy shift — restores the pre-2023 status quo and illustrates how court decisions continue to steer the boundaries of Clean Air Act enforcement discretion.