Sep 13: In the U.S. Court of Appeals, Fifth Circuit, Case No. 12-60482. A Petition for Review of an Order of the Environmental Protection Agency. In short summary, the Louisiana Department of Environmental Quality (LDEQ) petitioned for judicial review of a U.S. EPA objection to three title V air permits issued by LDEQ to Nucor Steel Louisiana (Nucor). The Appeals Court dismissed the petition saying it lacked subject matter jurisdiction.
In some detail, the Appeals Court explains, "LDEQ and Nucor's counter-arguments fail to persuade. They first argue that, because the EPA failed to object during § 7661d(b)(2)'s 60-day window for granting or denying a petition, § 7661d(c)'s limitation on judicial review does not apply. Nucor offers no support for that interpretation of § 7661d(b)(2), other than legislative history indicating that Congress intended the title V petition process to be timely, and its argument ignores the plain language of § 7661d(b)(2). Section 7661d(b)(2) does not prohibit the EPA from issuing an objection after the 60-day window has expired, and § 7661d(c) does not distinguish between timely and late objections in defining the point at which judicial review may be sought. Nor did Congress provide a remedy for an untimely objection. In such cases, courts are not to supply loss of jurisdiction as a consequence of a late objection.26
"LDEQ and Nucor next argue that the Objection is not an 'objection' within the meaning of § 7661d and therefore not subject to § 7661d(c)'s requirement that the Administrator take final action to issue or deny a permit before it can be subject to judicial review. LDEQ and Nucor point to no text supporting the distinction they attempt to draw, nor do they provide any workable rule for determining what constitutes an actual 'objection.' They essentially argue that because the Objection is improper, it is not an actual objection and is therefore subject to judicial review. But that same argument would apply in any action challenging an EPA objection. Accepting the argument would eviscerate § 7661d(c)'s limitation on judicial review of EPA objections, would require determination of the merits of the challenge to the Objection before determining jurisdiction, and is in tension with the necessity for subject matter jurisdiction to decide the merits of a challenge. Whatever may be the outer limits of an objection, relabeling the EPA action does not change its substance.
"We hold that this Court lacks subject matter jurisdiction to review the Objection, but we do not determine whether LDEQ and Nucor may pursue other avenues of judicial review, such as an action in district court under 42 U.S.C. § 7604(a)(2). We conclude that review in this forum is not proper until the Administrator takes final action issuing or denying a permit."
Access the complete opinion (click here). [#Air, #CA5]
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