Attempt to Create Law by Regulation
A federal court has sharply rebuked the EPA for exceeding its statutory authority. On May 26, 2011, Judge Richard Leon of the federal district court for the District of Columbia ruled that the agency’s regulatory process cannot trump a clear Congressional mandate, nor override judicial authority to compel EPA’s compliance with the law.
The issue at stake is the statutorily maximum timeframe for EPA’s final decision to issue a Prevention of Significant Deterioration air-quality permit, a fundamental authorization for large industrial sources such as power plants and refineries. The 1977 amendments to the Clean Air Act (CAA) added what is now Sec. 165(c), which requires that EPA either grant or deny a permit “not later than one year after the date of filing such a completed application.” In a 1992 agency rulemaking, the EPA added to the permitting process by creating an Environmental Appeals Board (EAB) for appellate review and final decision on permits. EPA admitted in its filings to the federal court that the appellate process of the EAB increases the timeframe from six months to over two years.
Averse to antagonizing the decision-maker, permit applicants are rarely willing to haul the EPA into court before the EPA makes its final decision. Thankfully, Avenal Power Center, L.L.C., an electric utility in California, was willing to stand up to the EPA. After waiting over two years on a permit for its planned state-of-the-art combined-cycle natural-gas-fired power plant, and before the EAB process had even begun, Avenal sued. It challenged EPA’s delay in granting the permit under section 165(c) of the CAA.
EPA readily admitted that it had violated the one-year statutory deadline but argued that the most the court could do was to order EPA to issue an interim decision, still subject to review by the EAB. Brazenly, the agency told the court that the EAB process established by the EPA created an administrative right to the additional review that cannot effectively be nullified by a court order to issue a final decision.
“How absurd!” responded Judge Leon. “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 the Administrator...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.”
Judge Leon quoted the seminal administrative law case Ernst & Ernst v. Hoschfelder (1978), in which the Supreme Court reasserted the separation of powers between legislative and executive branches: “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.”
Judge Leon responded to the EPA’s claim that the statute’s one-year deadline was ambiguous with deft nonchalance: “Horsefeathers!” Calling the EPA’s argument “too clever by half,” he noted simply, “That dog won’t hunt.” Mark one for limited government under the rule of law.
Judge Leon ordered the EPA to issue a final decision to grant or deny Avenal’s PSD permit by Aug. 27, 2011 “with our without EAB’s involvement.”
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Editor's Note: This is an incredibly important ruling due to the fact that it sets precedent so that any future cases will be subject to this decision, Good job, Judge Leon! That's the way to protect the US Constitution!!
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