EPA Withdraws Biden-era 2023 Affirmative Defense Rule, Restoring Protections for Energy and Manufacturing Facilities

EPA Withdraws Biden-era 2023 Affirmative Defense Rule, Restoring Protections for Energy and Manufacturing Facilities

May 28, 2026

WASHINGTON - U.S. Environmental Protection Agency (EPA) today withdrew the 2023 Biden EPA Affirmative Defense Rule to comply with a federal court mandate and restore longstanding protections for manufacturers, energy producers, and other facilities that exceed emissions limits due to unavoidable events such as equipment malfunctions or natural disasters.

The withdrawal reinstates a framework that distinguishes between liability for noncompliance, and situations where noncompliance occurs as a result of circumstances beyond a facility's control. The Trump EPA will continue to hold bad actors accountable for enforcement violations but will no longer unjustly punish good faith operators for emissions caused by sudden, unavoidable events.

"For decades, EPA regulations acknowledged that even well-run facilities can experience unavoidable events," said EPA Assistant Administrator Aaron Szabo. "As part of the Biden Administration's war on energy, manufacturing, and cost of living, they reversed course and attacked industry for emissions that weren't their fault. Today's action restores a balanced, commonsense framework that protects both the environment and the continued viability of American manufacturing and energy production."

In 2023, the Biden Administration removed the "affirmative defense" provisions from federal air permitting regulations, for stationary sources, known as title V permits. This exposed facilities to liability even when operators took all reasonable steps to prevent and mitigate emissions during events they could not have reasonably prevented. These liabilities had the ability to increase operating costs which could then be passed onto American families through high energy and household good prices.

In 2025, the U.S. Court of Appeals for the D.C. Circuit, in the SSM Litigation Group v. EPA decisions, reversed the Biden EPA's 2023 Affirmative Defense Rule. Therefore, the Trump EPA's withdrawal, today, is necessary to carry out the court's mandate and restore EPA's longstanding regulations to how they existed before the 2023 Affirmative Defense Rule.

Under the restored regulations:

• Facilities may demonstrate that excess emissions are caused by unavoidable emergencies or malfunctions;
• Facilities that act in good faith and follow proposed response procedures will not be unjustly punished;
• State, local, and Tribal permitting agencies will no longer be required to revise title V operating permit programs or existing operating permits to comply with the Biden-era rule; and
• American manufacturing and energy will be promoted, allowing them to continue providing high-paying jobs and essential items without fear of penalties.

EPA still encourages all facilities to invest in maintenance, prevention, and rapid-response systems to prevent and/or minimize emissions during unforeseen, emergency events.

Today's action does not create new regulatory requirements - it restores federal regulations as they were prior to the 2023 Affirmative Defense Rule. To comply with the federal court's mandates, the withdrawal will be effective immediately upon publication in the Federal Register. The Trump EPA is committed to providing regulatory certainty for American industry while maintaining environmental protections and following the rule of law. Of note, the Trump EPA has accomplished some of the strongest enforcement and compliance achievements in years, including hundreds more civil enforcement cases concluded than the previous year.

The withdrawal can be found on EPA's website.

Background

Title V of the Clean Air Act requires major sources and certain other sources to obtain an operating permit and operate in compliance with their operating permit. Sources with these title V permits are required to certify compliance with the applicable requirements of their permits at least annually. First promulgated in 1992, emergency-related affirmative defense provisions allow for stationary sources to avoid civil penalties for emissions violations caused by sudden, unavoidable malfunctions or emergencies. On July 21, 2023, the Biden EPA issued a final rule that rescinded emergency-related affirmative defense provisions previously codified in EPA's operating permit program regulations at 40 C.F.R. 70.6(g) and 71.6(g).