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Federal court holds that EPA’s refusal to block construction authorized by PSD permits cannot be challenged via citizen suit

08.01.2011

In a decision issued July 1, the D.C. Circuit Court of Appeals held that EPA’s refusal to block construction of three Kentucky air emission sources authorized by previously issued Prevention of Significant Deterioration (PSD) permits was not an action properly reviewable under the citizen suit provisions of the Clean Air Act. In Sierra Club v. Jackson, Case No. 10-5280, Sierra Club and other nonprofit environmental groups alleged that PSD permits were issued in violation of the Clean Air Act to: (1) East Kentucky Power Cooperative’s J.K. Smith Generating Station, (2) Conoco Phillips and Peabody Energy’s Kentucky NewGas Synthetic Natural Gas Production Plant and (3) Cash Creek Generation LLC’s coal-fired Cash Creek Generating Station.

The Clean Air Act provides that EPA shall take actions “as necessary” to prevent the construction of new sources subject to PSD review if the resulting PSD permit does not meet the requirements of the Clean Air Act. Plaintiffs argued that at the time of the permits’ issuance, Kentucky’s state implementation plan (SIP) was deficient because it failed to incorporate the 1997 National Ambient Air Quality Standard (NAAQS) for NOx or regulate NOx as a precursor to ozone. Sierra Club argued that as a result, the permits for the facilities were deficient and thus, the Clean Air Act required the EPA Administrator to issue an order halting construction of the facilities.

Affirming the district court’s ruling, the Court of Appeals held that decisions committed to an agency’s discretion are not subject to judicial review. The court held that what action is deemed “necessary” to prevent construction of a facility as provided for under the Clean Air Act is left to the discretion of the EPA Administrator and that the Administrator is entitled to weigh multiple factors in making that determination, including the scarcity of agency resources and the likelihood of success.


To view a complete PDF of the Second Quarter 2011 issue of the Air Quality Letter, click HERE.

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