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Luminant Generation Co. v. United States Environmental Protection Agency

ELR Citation: 44 ELR 20151
Nos. 12-60694, (5th Cir., 07/03/2014)

The Fifth Circuit held that notices of violations EPA sent to two power plant operators for alleged CAA violations were not "final agency action" and, hence, not subject to judicial review. In the notices, EPA claimed that the operators violated the Act's PSD provisions in connection with certain physical and operational changes made to the plants' emission units that resulted in increased emissions of sulfur dioxide and nitrogen dioxide. The operators then filed petitions for review, challenging the legal sufficiency of the notices. But the court dismissed the petitions for lack of subject matter jurisdiction because a notice of violation issued under CAA §113 does not constitute final agency action. Issuing a notice does not commit EPA to any particular course of action, a notice does not itself determine the operators' rights or obligations, and no legal consequences flow from the issuance of the notice. Contrary to the arguments of the operators, notices of violations do not share the finality of agency orders. Nothing in the CAA requires a regulated entity to “comply” with a notice. The petitions, therefore, were dismissed.