Washington Energy Report > Troutman Sanders LLP

Court Forces EPA to Issue Clean Air Act Permit Decision to Power Plant

On May 26, 2011, a United States District Court for the District of Columbia ordered the United States Environmental Protection Agency (“EPA”) to issue a final, non-appealable Prevention of Significant Deterioration (“PSD”) permit decision no later than August 27, 2011 for Avenal Power Center, LLC’s 600 megawatt natural gas-fired power plant in California.  The court rejected the EPA’s contention that it could issue an appealable, interim decision on the long-pending permit application despite a statutory requirement that the Agency reach a decision within one year.

A complete PSD permit application for the new state-of-the-art Avenal Energy Project has been pending before the EPA since March 2008.  In March 2010, Avenal sued the EPA for violating Section 165(c) of the Clean Air Act, which requires the Agency to grant or deny specified permit applications within one year.  Oral arguments in the case were held on March 16, 2011.  EPA did not deny that it had violated its duty to issue a decision within a year, but it argued that the only remedy the court could impose was to require issuance of an interim decision that could be appealed to the Environmental Appeals Board (“EAB”) under a regulatory review process.  Such an appeal could take eighteen months or longer. The court found that the EAB process for reviewing a permitting decision could not trump the statutory one-year mandate.  Stating, “while the [EPA] Administrator is welcome to avail herself of whatever assistance the EAB can provide her within the one-year statutory period, she cannot use that process as an excuse, or haven, to avoid statutory compliance,” the court required EPA to issue a final decision within ninety days.