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Exclusive State Court Review for NSR Permit Terms and Conditions: Does EPA's Proposal Go Too Far?

February 1997

Citation: ELR 10057

Author: Eliza A. Dolin & Ellen L.W. Proctor

Editors' Summary: This Article examines the judicial review provisions of EPA's proposed New Source Review (NSR) Reform Package issued under the 1990 Amendments to the Clean Air Act. The proposed rule would require the terms and conditions of state-issued NSR construction permits under Title I of the Act to be reviewable in state court, and would further allow states to designate the state forum as the exclusive means for judicial review of permit terms and conditions. The authors argue that this assignment of jurisdiction exceeds the authority granted to EPA by the 1990 Amendments, and thus is not entitled to judicial deference under Chevron and its progeny. Moreover, the authors argue that the existing administrative and judicial review procedures under Title V of the Act render EPA's proposal unnecessary, by allowing both state and federal review of NSR permit terms and conditions that are incorporated into a Title V operating permit. Thus, the authors conclude that the proper course of action is for EPA to fully utilize its existing Title V authority for substantive review of NSR permit terms and conditions.

Eliza A. Dolin is the senior associate in Dewey Ballantine's Environmental Practice Group. She is the author of a number of articles and several book chapters addressing the Clean Air Act Amendments of 1990 and other areas of environmental regulation. Ellen L.W. Proctor also is an associate in Dewey Ballantine's Environmental Practice Group.

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