On May 28, 2026, EPA announced withdrawal of the 2023 Biden EPA Affirmative Defense Rule for facilities subject to the Clean Air Act, effective immediately upon publication in the Federal Register. According to EPA’s news release, its action “restores federal regulations as they were prior to the 2023 Affirmative Defense Rule.” The reinstated regulations have “a framework that distinguishes between liability for noncompliance, and situations where noncompliance occurs as a result of circumstances beyond a facility’s control.”

Biden EPA Rule Eliminated the Affirmative Defense
The news release said the withdrawn rule “exposed facilities to liability even when operators took all reasonable steps to prevent and mitigate emissions during events they could not have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.”

Affirmative Defense Available
According to EPA, its action will “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.”

With 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;” and
• State, local, and Tribal permitting agencies will no longer be required to have their air permitting programs “comply with the Biden-era rule.”

To see the news release https://www.epa.gov/newsreleases/epa-withdraws-biden-era-2023-affirmative-defense-rule-restoring-protections-energy-and