United States of America
Permits, Air pollution, Prevention, Remedies, Jurisdiction
That case involved the interpretation of the Clean Air Act's counterpart to § 401, § 165, which requires a party seeking to construct a facility that will result in major emissions into the air to obtain a permit that any such emissions will not cause air pollution in excess of applicable air quality standards under the Clean Air Act (also known as a "Prevention of Significant Deterioration" or "PSD" permit. As with § 401, Congress, in passing § 165 of the Clean Air Act, required that any application for such a permit application be granted or denied by EPA within one year. Similar to the process set forth by the NYSDEC Commissioner, the Administrator of the EPA created a process for reaching a final decision on a § 165 permit. Under that process, the Regional Administrator of the EPA is the first to review the permit, followed by a public notice and comment period. After EPA reviews and responds to public comments, the EPA Regional Administrator reviewing the permit application must take action by granting or denying the permit application. This decision by the Regional Administrator, however, is not a final decision of the EPA; that decision is then subject to review by the EPA's Environmental Appeals Board ("EAB"), to which the EPA Administrator has granted authority to issue a final decision on a § 165 permit. Importantly, not until the EAB has issued its final decision can a party seek judicial review of a decision on the permit. In February 2008, Avenal Power applied to the EPA Regional Administrator for a § 165 permit. The Regional Administrator deemed the application complete on March 19, 2008. After extensive public comment, and various extensions of time and further administrative process, the EPA Regional Administrator continued its review of the proposed project through March of 2010, approximately two years after the application was deemed complete. Having gone far in excess of the statutory one-year period for review without a final decision from EPA in sight, Avenal Power filed suit in the district court for the District of Columbia, contending that EPA violated the statutory requirement that it act on the application within one year, seeking an order requiring EPA to issue a final decision. In response, EPA argued that its process for issuing a final decision was proper. Furthermore, EPA argued that the only action it was required to take to comply with the statute was to issue a "final" decision by the Regional Administrator, subject to review by the EAB. The district court rejected EPA's argument, holding that Congress's mandate in § 165(c) made clear that the EPA Administrator was required to issue a final decision on the § 165 permit within one year. In doing so, the district court noted that the EPA Administrator was permitted to set whatever procedure it deemed fit for coming to that final decision, including delegating final authority to the Regional Administrator or seeking guidance from the EAB on the permit application, but that § 165 required that such procedure result in a final decision, one that would either allow the project to go forward, or allow the decision to be appealed in federal court, to occur within the statute's mandated one-year period. Accordingly, the court granted Avenal Power's petition, held that EPA had violated the statute, and ordered the EPA Administrator to make a final decision on the application within 90 days of the court's order.