Washington, DC — Challenging a pollution discharge permit issued by the U.S. Environmental Protection Agency will be much more challenging under a proposal the agency just unveiled, according to comments filed today by Public Employees for Environmental Responsibility (PEER). Under the guise of modernizing and streamlining, EPA would straight-jacket its quasi-independent appeals board by determining what it could hear and how it could rule.
The proposed changes would significantly alter the functioning of EPA’s 27-year old Environmental Appeals Board. In those years, the EAB decided nearly 600 permit appeals, principally involving permits issued under the Clean Water and Clean Air Act, with less than 1% of final EAB decisions reversed by court review.
EPA’s new proposal would strip the EAB of the ability to –
- Overrule EPA legal positions. The Administrator or the EPA General Counsel could issue a binding legal interpretation of any applicable statute or regulation;
- Rule on matters of administrative discretion or policy, instead the EAB could look only at “a finding of fact or conclusion of law that is clearly erroneous”; and
- Review permits on its own motion, no matter how egregious the legal violation.
- Receive and consider amicus curiae participation, or briefs from outside parties.
“Gutting the Environmental Appeals Board is a classic example of foisting a fix on an institution that is not broken,” stated PEER Executive Director Tim Whitehouse, a former EPA enforcement attorney, noting that EAB would also not be allowed to receive amicus curiae briefs from outside parties. “If the EAB cannot act as a check on abuse of agency discretion, then why have it?”
On November 6, 2019, EPA issued a press release proclaiming that it would unveil a plan “to streamline and modernize the review of permits” but the release contained no link to the plan itself. Late in the day, the agency quietly posted the 50-page proposal. The agency does not indicate that any entity asked for the changes which make it harder to overturn permits issued to industry and other pollution dischargers.
“The Environmental Appeals Board is one of the few entities inside EPA whose decisions are made by civil servants, not political appointees,” Whitehouse added, noting that the plan also limits terms of EAB judges. “This plan removes yet another layer of professionalism countering political manipulation of core environmental statutes aimed at ensuring clean air and water.”
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