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Federal rule limits challenges to construction air permits through operating-permit reviews, effective October 26

A final federal rule says preconstruction air permits issued with public comment and court review define a plant's requirements in its operating permit, narrowing grounds for federal objections and citizen petitions.

Manufacturers, power plant owners and data center developers that already hold construction air permits face fewer routes for opponents to reopen those permits when the plant's operating permit comes up for review. On September 25, 2026, the U.S. Environmental Protection Agency (“EPA”) published a final rule, Clarifying the Scope of “Applicable Requirements” Under State Operating Permit Programs and the Federal Operating Permit Program, 91 Fed. Reg. 61,026 (Sept. 25, 2026), amending 40 C.F.R. parts 70 and 71, effective October 26, 2026.

91 Fed. Reg. 61,026 (Sept. 25, 2026); 40 C.F.R. §§ 70.2, 70.8, 70.12, 71.2; 42 U.S.C. § 7661d(b)(2); 25 Pa. Code § 127.11

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