Friday, August 1, 2008

Citizens Against Ruining The Environment v. U.S. EPA

Jul 28: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 07-3197, 07-3198 & 07-3199. In this consolidated appeal of three related administrative review proceedings, the petitioners, several environmental protection groups and the attorney general of the State of Illinois, challenge the failure of U.S. EPA to object to certain operating permits proposed by the Illinois Environmental Protection Agency (IEPA) pursuant to the Clean Air Act (CAA). The petitioners contend that the Administrator was obligated to object because they clearly “demonstrated” that the permits were not in compliance with the CAA.

The EPA, on the other hand, maintains that the Administrator reasonably exercised his discretion in determining that the petitioners did not “demonstrate” a violation because their petitions called for further investigation and analysis, a task the Administrator found to be more appropriately carried out through the CAA’s enforcement process. The petitioners argue that the CAA grants the Administrator no such discretion.

The case involves Midwest Generation, the operator of multiple, large, coal-fired power plants in Illinois. Six of those plants: the Fisk, Crawford, Will County, Powerton, Joliet, and Waukegan stations are involved. Midwest’s predecessor, Commonwealth Edison, originally submitted applications to the IEPA for Title V operating permits back in 1995.

The Appeals Court said because the CAA does not provide a standard of review, we review the EPA’s decision under the Administrative Procedure Act (APA), which contemplates setting aside agency actions only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Appeals Court determined that the Attorney General had "not met her burden of establishing standing in this case" and dismissed her petition for review. The review then focused on the environmental groups’ challenge to the Administrator’s decision not to object to the Fisk and Crawford permits.

The groups cited a precedent from the Court of Appeals for the Second Circuit’s opinion in New York Public Interest Research Group, Inc. v. Johnson, 427 F.3d 172 (2d Cir. 2005). In summary, the Appeals Court disagreed with the groups and said, ". . .we conclude that where, as here, there is contested evidence of a potential violation requiring further investigation and analysis, the CAA allows the EPA reasonable discretion to determine that the petition failed to demonstrate noncompliance and to refer the matter to the enforcement process." The Appeals Court denied the environmental groups’ petition for review (No. 07-3197).

Access the complete opinion (
click here).