UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AVENAL POWER CENTER, LLC, )
)
Plaintiff, )
)
v. ) Civ. Action No. lOcv383 (RJL)
)
U.S. ENVIRONMENTAL PROTECTION )
AGENCY, et al., )
)
Defendants.
-t'v--)
MEMORANDUM OPINION
(Ma1Zb201O) [##12,14]
Avenal Power Center, LLC ("plaintiff') brings this action against the U.S.
Environmental Protection Agency ("EPA") and Lisa P. Jackson, Administrator of the
EP A ("Administrator" and collectively "defendants") for violation of Section 165( c) of
the Clean Air Act ("CAA"). Section 165(c) requires the EPA to grant or deny specified
permit applications within one year. While the parties agree that the EPA has violated its
duty to render a final decision within one year under Section 165( c), the parties disagree
as to the appropriate remedy that the Court can, and should, impose. On March 16, 2011,
the Court heard oral argument on this question. The EPA, in essence, argues that
notwithstanding Congress' one-year statutory time limit (established in 1977) for a final
agency action, the most the Administrator could now be required to do is issue a decision
that is appealable to the Environmental Appeals Board ("EAB"): a review process
enacted by regulation in 1992 for the assistance of the Administrator, that the EPA freely
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concedes could take anywhere from six to eighteen months, or longer, to complete. In
effect, the EPA contends that this subsequently-enacted regulatory review process trumps
Congress' one-year statutory deadline and, as such, the most that this Court can do is
require the agency to issue an appealable interim decision within the one-year statutory
period. Upon consideration of the parties' pleadings, including parties' supplemental
briefs on this question, oral argument, and the record herein, the Court disagrees with the
defendants' position and, therefore, GRANTS, in part, plaintiffs Motion for Judgment on
the Pleadings, and DENIES defendants' Motion for Summary Judgment. Accordingly, it
is ORDERED that the EPA Administrator issue a final, non-appealable, agency action,
either granting or denying plaintiff s permit application, no later than August 27, 2011.1
BACKGROUND
Avenal Power Center, LLC currently seeks to develop and build a state of the art
600 megawatt natural gas-fired power plant, the Avenal Energy Project. Jt. Stips. ~~ 1-3,
Jt. Stmt. Re. Case Mgmt, and Sched., Ex. 1 [# 11]. To this end, plaintiff submitted, in
February 2008 to the EPA, a Prevention of Significant Deterioration ("PSD") permit
application. The application was deemed complete on March 19,2008. Id. ~~ 3-5.
Almost two years later, however, after an elaborate and exhaustive EPA administrative
process, which included a notice and comment period and public hearing, the plaintiff
1 The Court reserves judgment with respect to plaintiffs request for attorney's fees and
costs. In addition, in light of the February 4,2011 declaration by Regina McCarthy,
Assistant Administrator of the EPA's Office of Air and Radiation, which was released
after plaintiff filed its Motion, as well as subsequent briefs and oral argument, the relief
sought by plaintiff has been accordingly revised.
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still had no final or foreseeable resolution to its application. As such, the plaintiff
brought this action on March 9,2010, seeking judicial relief to deal with EPA's
continued violation of Congress's one-year deadline under Section 165( c) of the CAA.
Compl. ~ 28.
Initially, the EPA defended its delay by citing two unresolved issues with
plaintiffs application: (1) the EPA required continued consultation with the U.S. Fish
and Wildlife Service ("USFWS") to ensure compliance with the Endangered Species Act;
and (2) the EPA required that plaintiff show that the Project would meet a new EPA
standard for nitrogen dioxide ("N02 Standard"). See Answer at 4. On September 1,
2010, however, USFWS issued a Biological Opinion that effectively mooted the first
issue. Pl.'s Br. Re. Remedy, Feb. 15,2011, ("Pl.'s Supp. Br.") at 5, n. 2 [#34].
Meanwhile, the N02 Standard had gone into effect on April 12, 2010, and plaintiff,
therefore, argued that the EPA could no longer withhold its decision on plaintiffs permit
because of this new requirement. See PI. Mot. 1. on Pleadings at 11. Ultimately, the EPA
conceded this point as well.
Indeed, on February 4, 2011, in a declaration by Regina McCarthy, Assistant
Administrator of the EPA's Office of Air and Radiation, the EPA reversed its position on
the N02 Standard and announced that "[t]he PSD permit application submitted by
Avenal in 2008 is among those PSD permit applications that EPA believes it is
appropriate to grandfather from these additional [N02 Standard] requirements,
particularly in light of EPA's statutory obligation to grant or deny a complete PSD permit
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application within one year .... " Corr. 2d Decl. of Reginal McCarthy ("McCarthy
Decl.") 1 6. As such, the EPA announced that it would "be able to issue a final permit
decision in accordance with 40 C.F.R. § 124.l5 on [plaintiffs] permit application by
May 27, 2011." Id. 1 13. Unfortunately, that offer was not what it appeared to be!
As plaintiff appropriately points out, EPA's promise of a "final permit decision"
under 40 C.F.R. § 124.15 was inherently disingenuous. It actually was only a promise to
render, in effect, an "interim decision" subject to appeal before the EAB. PI. Supp. Br. at
7. Plaintiff, as a result, was left with no choice but to seek an order from the Court
imposing a deadline, no later than May 27, 2011, by which defendants would be required
to render a decision on plaintiffs permit application that would constitute an actual final
agency action, allowing plaintiff to either begin construction on the Avenal Energy
Project or seek judicial review in the Federal Courts pursuant to 42 U.S.C. § 7607. See
id. at 17. Undaunted, defendants argued that an appealable decision by a Regional
Administrator is sufficient to satisfy the CAA's one-year deadline and, in any event, this
Court lacks jurisdiction to impose the relief being sought by the plaintiff. See generally
Dds.' Response to PI. Supp. Br. For the following reasons, I disagree with the
defendants' oh so clever, but unsupportable, position.
ANALYSIS
In 1977, Congress required the Administrator of the EPA to grant or deny a permit
application, filed under the CAA, within one year. 42 U.S.C. § 7475(c). The
Administrator retained discretion, however, as to the procedural process that an applicant
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had to comply with during that one-year period. See 42 U.S.C. § 7601(a). For example,
the Administrator could delegate his or her ultimate decision on the application to a
Regional Administrator, or an Assistant Administrator, or even require an interim
decision by one of her subordinates prior to making the ultimate decision herself. See,
e.g., 40 C.F.R. §§ 124.15, 124.19; Mar. 1,2011, Temporary Delegation, Defs.' Resp. to
PI. 's Supp. Br., Ex. 1. In 1992, however, the Administrator decided to create an
Environmental Appeals Board and delegate to it the final review of a grant or a denial of
such application by a Regional Administrator. See 57 Fed. Reg. 5320 (Feb. 13, 1992).
Unfortunately, when the Administrator created that process she failed to build into it the
temporal requirement that the EAB's decision be completed within the CAA's statutorily
mandated one-year period. See 40 C.F.R. § 124.19. As a result, the EPA put in place a
review process that can and has, in this case, rendered meaningless this Congressional
one-year mandate.
Unfazed, the EPA argues, in effect, that this regulatory process trumps Congress's
mandate and relieves the Administrator of complying with it until the EAB renders the
Agency's final decision. See Defs.' Resp. to PI. Supp. Br. at 5, 9-12; see also Tr. 3/19111
at 31: 17-21. Indeed, EPA contends, further, that this regulatory review process creates a
right to this additional level of review that cannot be - effectively - denied by a Court
order that requires the Administrator to issue a final - non-appealable - decision within
the Congressionally mandated one-year period. See Defs.' Resp. to PI. Supp. Br. at 5, 9-
12; see also Tr. 3/19/11 at 36:3-6. In essence, the EPA contends that Congress's
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statutory mandate is subservient to EPA's regulatory review process, and as such this
Court has no authority to require the Administrator to comply with this statutory
requirement. See Defs.' Resp. to PI. Supp. Br. at 9-12; see also Tr. 3/19/11 at 36:3-6.
How absurd!
It is axiomatic that an act of Congress that is patently clear and unambiguous -
such as this requirement in the CAA 2 - cannot be overridden by a regulatory process
created for the convenience of an Administrator, no matter how much notice and
comment preceded its creation. See Chevron, US.A., Inc. v. Natural Res. De! Council,
Inc., 467 U.S. 837, 842-43 (1984) ("If the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress."); Ernst & Ernst v. Hochfelder, 425 U. S. 185,213-14
(1978) ("The rulemaking power granted to an administrative agency charged with the
administration of a federal statute is not the power to make law. Rather it is the power to
adopt regulations to carry into effect the will of Congress as expressed by the statute."
(internal quotations omitted)). Administrators of regulatory agencies derive their power
from Congress's statutory enactments - not from their own discretionary regulatory
pronouncements that are drafted for their assistance and convenience. See North
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 under Chevron. See Defs.' Resp. to Pl.'s Supp. Br. at 13-17.
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.
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Carolina v. EPA, 531 F.3d 896, 922 (D.C. Cir. 2008) (citing Michigan v. EPA, 268 F.3d
1075, 1081 (D.C. Cir. 2001)). To the extent that a regulatory process frustrates or renders
meaningless a Congressional statutory mandate, it must yield to Congress's will. See
Ernst & Ernst v. Hochfelder, 425 U. S. at 213-14; Fed. Maritime Com. v. Seatrain Lines,
Inc., 411 U.S. 726, 745 (1973); see also Southland Royalty Co. v. Fed. Energy Admin.,
512 F. Supp. 436, 446 (N.D. Tex. 1980). Thus, while the Administrator is welcome to
avail herself of whatever assistance the EAB can provide her within the one-year
statutory period, she cannot use that process as an excuse, or haven, to avoid statutory
compliance.
Accordingly, the Administrator, in this Court's judgment, must issue a truly final
decision, either granting or denying the permit in question as soon as possible.
Regrettably her offer to issue an interim appealable decision by May 27, 2011 is patently
inadequate as it has already exceeded Congress's mandate by some three years and
undoubtedly would attenuate the process for yet another six to eighteen months.
However, recognizing that the Administrator might need a brief additional period of time
to determine how to best proceed vis-a-vis the existing EAB review process, the Court
will extend the Administrator an additional 90 days to issue her final decision, either with
or without the EAB's involvement.
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CONCLUSION
Accordingly, for the foregoing reasons, it is ORDERED that the Administrator of
the EPA issue a final decision granting or denying the plaintiff s permit no later than
August 27,2011. An order consistent with this decision accompanies this Memorandum
Opinion.
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