Testing EPA’s Authority

Jun 21, 2012

The CWA instructs the Army Corps of Engineers to specify disposal sites and issue disposal permits; it also vests EPA with authority to prohibit and withdraw disposal designations.  EPA interprets this veto power to apply at any time – i.e. even after the Corps issues a valid permit.  On March 23, a district court in the D.C. Circuit held EPA’s interpretation as impermissibly placing permittees “in the position of not being able to rely upon the sole statutory touchstone for measuring their [CWA] compliance: the permit.”  EPA has appealed to the D.C. Court of Appeals.

Coal plants have also challenged an EPA proposal to limit greenhouse gas emissions under the Clean Air Act.  Traditionally, parties foreseeably impacted by proposed rules cannot establish standing for judicial review until the rule is final and causes them harm.  Here, however, the coal plants argue that the proposed rule has the effect of final agency action because its “new source” classification is made retroactive to the proposal’s publication date – April 13, 2012 – thereby stunting project development even if the proposed rule is never finalized.

Broad judicial deference to agency rulemaking and interpretation would predict failure of either challenge.  After Sackett, this result is not so clear.