Court to EPA: “Horsefeathers!”

Source:  email

by Peter Glaser [Troutman Sanders]

Here’s a fun way to start off your Memorial Day weekend (at least for those of us who consider this type of stuff fun).

The Clean Air Act provides that EPA must act, up or down, on a completed PSD permit application within one year.  EPA says that one year does not include appeals to the Environmental Appeals Board (EAB).  But the EAB is a body that EPA established through a delegation from the Administrator to provide an administrative appeal of EPA PSD decisions (and the PSD decisions of the seven states who act as EPA “delegates”).  It was not established under the Clean Air Act.

The Avenal project is a new natural gas combined cycle facility that applied to EPA for a PSD permit.  When EPA didn’t act for almost two years, the developer took EPA to court, arguing that the one year deadline in the statute for EPA to act means one year.  EPA tried to convince the court that one year didn’t include the EAB appeals process, which hadn’t even begun, even though the EAB is part of EPA.

To which the Court said:  “How absurd!  It is axiomatic that an act of Congress that is patently clear and unambiguous such as this requirement in the CAA cannot be overridden by a regulatory process created for the convenience of an Administrator….”

And then, in footnote 2:  “The EPA has labored mightily to convince this Court that the temporal requirement enacted by Congress is somehow ambiguous and, therefore, this Court should defer to its interpretation ….Horsefeathers! The EPA’s self-serving misinterpretation of Congress’s mandate is too clever by half and an obvious effort to protect its regulatory process at the expense of Congress’s clear intention. Put simply, that dog won’t hunt.”

Very few of the Obama Administration EPA regulatory decisions have gotten to the point that we yet have court decisions on them.  This is one of the first.  Here’s hoping that this decision will set a pattern.

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