DC Circuit Tosses Challenge to Power-Plant Permitting

The Indian Point nuclear power plant in Buchanan, N.Y. (AP Photo/Julie Jacobson, File)

WASHINGTON (CN) — The D.C. Circuit on Tuesday struck down the Sierra Club’s challenge to the Trump administration’s roundabout strategy to issue permits to power plants that the environmentalists warn will clog the nation’s air with even higher levels of harmful pollution. 

The three-judge panel ruled it lacked jurisdiction to overturn guidance from the Environmental Protection Agency regulating air pollutant levels for new power plants and refineries seeking permits from state authorities. 

U.S. Circuit Judge Robert Wilkins, a Barack Obama appointee, wrote for the court that the case presented a “seemingly labyrinthine question” on whether the guidance can be reviewed by the judiciary as a final agency action.

Expressing no opinion on ripeness or the merits of the case, the appellate court in the end concluded that it cannot review the EPA guidance under the Clean Air Act of 1963 because the agency action “does not create a new and binding legal regime.”

The debated recommendations to state permitting authorities, according to the EPA, was published as a first step as the agency gathered more information to issue final guidance.

“EPA argues the guidance explicitly states that its issuance is only phase one of a two-step process the agency will be undertaking in response to the court’s partial vacatur and remand of the 2010 rule,” Wilkins wrote, mapping the tangle of previous litigation encircling the permits guidance. 

The Justice Department argued last year that the guidance was discretionary and the language was “not prescriptive” on how states should study possible polluting sites. 

“Here everything is written in the form of suggestions and encouragement,” Justice Department attorney Brian Lynk said during oral arguments. 

But Earthjustice attorney Gordon Sommers, representing the Sierra Club, said the agency “created discretion out of whole cloth,” opening the door wide for states to violate national air-quality standards.

Joined by U.S. Circuit Judges Merrick Garland, a Bill Clinton appointee, and A. Raymond Randolph, a George H. W. Bush appointee, Wilkins zeroed in on the guidelines leaving it up to the states to choose whether to draw on the federal pollution standards. 

“The SILs Guidance explicitly preserves state discretion regarding what degree of modeling or analysis may be necessary for each petition and does not require states to review their programs or take any proactive action in response,” the judge wrote. “The states have not been given ‘marching orders’ and are not expected to ‘fall in line.’”

But Wilkins also penned a six-page concurring opinion reinforcing that Congress vested the D.C. Circuit with the power to review final EPA decisions “to prevent a patchwork of regional interpretations” of agency actions to be applied nationwide. 

“There is no question here that the SILs Guidance is ‘nationally applicable,’ as the Guidance was distributed for use nationwide,” Wilkins wrote, noting that the EPA said it believed the guidance was “sufficient in most situations for a permitting authority” to determine if a plant will violate air pollution standards.

The judge stressed that if the EPA issues a final rule it should be reviewed by the D.C. Circuit. 

The concurring opinion triggered a secondary, curt concurrence from Randolph, a senior circuit judge, in response: “I concur in the majority opinion. As to Judge Wilkins’ separate concurring opinion, I see no reason to decide what we would decide if only the case before us were a different case.” 

The Justice Department and Earthjustice attorney Sommers did not respond to requests for comment on Tuesday’s ruling. 

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