When’s the last time that an environmental organization sued the US EPA because the Agency wasn’t being “tough enough?” Well, it happens far more often than a layman might think. On August 12, 2014, the Ninth Circuit Court of Appeals ruled that the Environmental Protection Agency did not have authority to approve a permit for a California natural gas power plant using air quality standards in effect when the application was submitted (2008) rather than stricter regulations adopted while the permit application was pending (for six years).
“The [statute] clearly requires EPA to apply the regulations in effect at the time of the permitting decision,” the panel said. “We do not believe EPA’s legal or practical options were so conflicted, or even very uncertain.”
Environmental groups (the Sierra Club, among others) indicated that the EPA must deny a permit application if the EPA cannot perform the required review within a one-year limit, but the court said that wasn’t the EPA’s only possible choice.
“Even after the deadline passes, at least absent suit, EPA could presumably work with the applicant to ensure compliance with whatever regulations are in effect, and then issue or deny a permit accordingly,” the panel said.
After Avenal Power LLC’s 2008 permit application was filed, the regulations changed and the Clean Air Act was unclear about which standards should now (as in 2014 – yes, 6 years later) be enforced – at least that’s what the EPA said. But court said that EPA does not have the power to choose the standards, and that Congress made it clear the tighter rules must apply. The case is complex and alarming. Who wants to submit a permit application now and six years later be told that the rules to the game have changed?
While the decision appears to be limited to the Clean Air Act, what if the courts decide that it sets a precedent that other pending permits are subject to changing targets after an application is under review? Setting aside whether or not that perspective is “fair,” the court’s ruling makes businesses far more vulnerable to the whims of regulators and regulations. As of August 12, 2014, a permittee of US EPA-required permits can now have a permit rejected when:
- A permit hasn’t yet been applied for (Pebble Mine in Alaska);
- A permit has been applied for but the regulations changed while the permit application was under review (the Ninth Circuit Court of Appeals decision);
- A permit has already been granted (the Mingo Logan case, West Virginia).
When it comes to the risks for American businesses trying to create jobs and taxable income, the continued assault on the permit approval process will shrink management’s enthusiasm for constructing a facility in the US. Who finds it rational to have gone 70 MPH on an interstate yesterday, only to be fined for speeding when the speed limit is reduced to 55 MPH six years from now?
About the Author
Gerald L. Kirkpatrick, P.G. is a Principal Geoscientist and the Managing Partner of Environmental Standards, Inc. Mr. Kirkpatrick has more than 30 years of applied environmental geoscience experience in both private industry and environmental consulting. Outside of work, Gerry enjoys fishing and an occasional single malt. A very poor chess player, he remains dedicated to the game, nonetheless.