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Sierra Club v. U.S. Environmental Protection Agency

Citation: 44 ELR 20184
No. 11-73342, -73356, (9th Cir., 08/12/2014)

The Ninth Circuit vacated and remanded EPA's decision to issue a PSD permit allowing a power company to build and operate a 600 megawatt natural gas-fired power plant. EPA missed the one-year statutory deadline to grant or deny the permit; during this same period, EPA tightened the applicable air quality standards. The company then filed suit seeking to compel the Agency to issue the permit under the old standards that would have applied had EPA acted within the deadline. Initially, EPA responded that it could not legally do so because the CAA explicitly requires any newly constructed facility to use the best available control technology for regulated pollutants and to meet air quality standards in effect at the time a permit is issued. Months later, however, EPA decided to grant the permit without regard to the new regulations, which by then had gone into effect. Environmental groups filed suit, arguing that EPA exceeded its authority under the CAA, and the court agreed. EPA argued that under narrow circumstances, it has the authority to grandfather certain permit applications and that its decision is entitled to deference. But the CAA unambiguously requires the permit-seeking company to demonstrate that the project complies with the regulations in effect at the time the permit was issued. Because Congress has directly spoken on the issue, EPA may not waive this requirement. The court therefore vacated EPA's decision to issue the permit and remanded for further proceedings.