Academic journal article Harvard Law Review

Federal Statutes - Clean Air Act - D.C. Circuit Holds That EPA Cannot Prevent State and Local Authorities from Supplementing Inadequate Emissions Monitoring Requirements in the Absence of EPA Regulation

Academic journal article Harvard Law Review

Federal Statutes - Clean Air Act - D.C. Circuit Holds That EPA Cannot Prevent State and Local Authorities from Supplementing Inadequate Emissions Monitoring Requirements in the Absence of EPA Regulation

Article excerpt

FEDERAL STATUTES--CLEAN AIR ACT--D.C. CIRCUIT HOLDS THAT EPA CANNOT PREVENT STATE AND LOCAL AUTHORITIES FROM SUPPLEMENTING INADEQUATE EMISSIONS MONITORING REQUIREMENTS IN THE ABSENCE OF EPA REGULATION.--Sierra Club v. EPA, 536 F.3d 673 (D.C. Cir. 2008).

Due to new environmental problems and Congress's hesitance to pass new regulatory statutes, judicial review of agency inaction serves an increasingly important function in policing agency action. (1) For a court to invoke the doctrine governing review of agency inaction, however, it must first decide that it is reviewing an instance of agency inaction, as opposed to action. Recently, in Sierra Club v. EPA, (2) the D.C. Circuit held that the Environmental Protection Agency (EPA)'s 2006 rule prohibiting states and local authorities from supplementing inadequate monitoring procedures in emissions permits violated Title V of the Clean Air Act. (3) The majority held that, because the statute required "[e]ach permit" (4) to include adequate monitoring requirements and the EPA had not "fixed all inadequate monitoring requirements" itself, the EPA could not bar state and local authorities from supplementing inadequate monitoring procedures. (5) While the majority approached the case as one involving review of agency action, the suit could also have been characterized as judicial review of agency inaction, because the court held that the EPA's 2006 rule violated the Clean Air Act only due to the EPA's inaction in implementing sufficient monitoring provisions. By approaching the case as one involving review of agency action, the majority's approach has the promising potential to sidestep many of the difficulties inherent in judicial review of agency inaction.

In 1990, Congress added Title V to the Clean Air Act, (6) requiring that major stationary sources of air pollution obtain permits from state and local authorities, such that:

  Each permit issued under this subchapter shall include enforceable
  emission limitations and standards, a schedule of compliance, a
  requirement that the permittee submit to the permitting authority,
  no less often than every 6 months, the results of any required
  monitoring, and such other conditions as are necessary to assure
  compliance with applicable requirements of this chapter, including
  the requirements of the applicable implementation plan. (7)

The statute charges the EPA with supervising the program:

  [T]he Administrator shall approve or disapprove such program, in
  whole or in part. The Administrator may approve a program to the
  extent that the program meets the requirements of this chapter,
  including the regulations issued under subsection (b) of this
  section. If the program is disapproved, in whole or in part, the
  Administrator shall notify the Governor of any revisions or
  modifications necessary to obtain approval. (8)

To implement this statute, the EPA passed the Part 70 Rules, (9) which specify the steps state and local authorities may take in issuing emissions permits. (10) If a proposed permit includes sufficient monitoring requirements, the rules allow the state or local authority to issue the permit; if a proposed permit does not include any monitoring requirement, the rules require state or local authorities issuing permits to create adequate monitoring requirements. (11) If the proposed permit includes monitoring requirements, but the requirements are not sufficient to ensure compliance with the Clean Air Act, the rule does not specify whether the state or local authority can take action. (12)

After first taking the position that the Part 70 Rules allowed state and local authorities to supplement inadequate monitoring requirements, the EPA reversed its course and issued the 2006 rule (13) interpreting the Part 70 Rules to prohibit state and local authorities from adding monitoring requirements to proposed permits with insufficient monitoring regimes. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.