Chapter 12. Administrative Procedure and Judicial Review

Theodore L. Garrett and Sonya D. Winner

Editors' Summary: This Article is the third in a three-part series on the Clean Air Act and the 1990 amendments. The authors analyze the new permit program mandated by the 1990 amendments, which requires the creation of a state-administered permit program. The authors also analyze the enforcement mechanisms available under the Clean Air Act that are applicable to stationary sources, and the administrative procedures and judicial review provided for in the Act. The authors analyze the Act's new provisions concerning chemicals that destroy stratospheric ozone, and the new requirements for phasing out the production and consumption of ozone-depleting substances. Finally, the authors explore the legislative history of the 1990 amendments, identifying wherepossible the sources of statutory text, amendments to that text, and analysis of the various pieces of the legislative history.

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The public often participates extensively in rulemakings and other regulatory actions under the Clean Air Act, and many sections of the Act explicitly provide for such participation.¹ The administrative procedure that applies to federal actions under the Act is governed primarily by § 307.² Rules governing judicial review of such actions are established in §§ 304 and 307.³

I. Administrative Procedure

Section 307(d) establishes procedural requirements for most of the major rulemaking actions that the U.S. Environmental Protection Agency (EPA) is required to perform under the Act, including the promulgation of emission standards.⁴ These procedures apply to those actions in lieu of the procedural requirements that would otherwise apply under the Administrative Procedure Act (APA).⁵ However, the procedures established under § 307(d) in most respects parallel the APA.⁶

Section 307(d)(2) requires EPA to establish a rulemaking docket. Regulations must be promulgated through notice-and-comment rulemaking, beginning with publication in the Federal Register of a Notice of Proposed Rulemaking. Such a notice must include a statement of the basis and purpose of the proposed rule, the factual data on which the proposed rule is based, the methodology used in obtaining and analyzing the data, and an explanation of the major legal interpretations and policy considerations underlying the proposal.⁷ Supporting documentation must be placed in the official EPA docket and made available for review by the public at the time that the proposal is published.⁸ The public docket must also include all written comments and other documents submitted on the proposed rule, as well as transcripts of any public hearings held on the proposal.

Section 307(d)(5) requires EPA to accept written comments, data, or other documents from "any person" and to give interested persons an opportunity for "the oral presentation of data."⁹ The statute does not require formal hearing procedures to be used, other than the preparation of a transcript of the proceeding.

The statute does not establish a minimum time for the public comment period, although the hearing record must be kept open for at least 30 days "for submission of rebuttal and supplementary information."¹⁰ If there is a statutory deadline for promulgation of the regulation, and that deadline requires the final rule to be promulgated within six months of proposal, EPA may automatically extend the deadline if necessary to afford an adequate opportunity for public comment.¹¹

The final rule promulgated by EPA pursuant to these procedures may be based only on information and data that are in the docket.¹² The final rule must be accompanied by a response to all "significant" comments, criticisms, or data provided during the comment period, as well as an explanation for any major change in the final rule from the proposed rule.¹³

II. Judicial Review

A. Jurisdiction

Judicial review under the Clean Air Act is governed primarily by §§ 304 and 307. The Act includes an unusual split of authority between the district courts and the courts of appeal. Final actions that EPA has already taken under the Act are reviewable in the court of appeals,¹⁴ whereas any failure by EPA to perform a nondiscretionary act is reviewable through a citizen suit filed in the district court.¹⁵

This split of judicial authority creates practical problems for courts that are presented with cases presenting a mixture of challenged action and inaction. The most common examples of such situations have involved EPA review of state implementation plans (SIPs), in which EPA has approved or disapproved some portions of a SIP and failed to act on others. Technically, the Act appears to require challenges to the approval decision to be brought in the court of appeals and challenges to the failure to act in the district court. However, the legal issues involved in both challenges may be inextricably intertwined, thus raising the possibility of duplication of judicial resources and conflicting decisions.

The courts have dealt with this problem by interpreting § 307 as conferring jurisdiction on the courts of appeals to [22 ELR 10314] review all issues raised by a single Agency SIP decision, including portions of that decision that involve deferral of action on some aspects of the SIP.¹⁶ However, there is a split of authority over whether a court of appeals, in reviewing such a "unitary" decision, may itself order EPA to promulgate regulations to fill gaps in a SIP.¹⁷

B. The Requirement of Finality

Another difficult jurisdictional issue that often arises concerns the circumstances under which an EPA action will be deemed final and hence reviewable.¹⁸ A regulation that has been formally promulgated is clearly final, but the finality of other EPA actions is less clear. For example, several courts have held that an administrative order is not reviewable if its terms do not compel the recipient to comply at the risk of sanctions.¹⁹ Similarly, a SIP call is not considered to be a "final" action, since individual sources will be subject to new requirements only after the revised SIP is promulgated.²⁰ In general, an action will be considered final if it is definitive, is based on a record adequate to permit review, and has an immediate impact on an interest of the party seeking review.²¹

An EPA determination or other action may be deemed final even if the Agency refuses to acknowledge that it has in fact taken a final action. Where inaction effectively represents final action and "has the same impact on the rights of the parties as an express denial of relief," judicial review will be available.²²

In an extreme extension of the "finality" doctrine, at least one court has held that judicial review of an Agency action is not available if a petition for reconsideration is pending.²³ The 1990 amendments have added a new provision overruling this decision and confirming that judicial review proceedings may go forward even if a petition for reconsideration is pending.²⁴ However, this provision goes to jurisdiction only; a court still retains authority to stay review proceedings if EPA indicates that it is actively considering a petition for reconsideration. This device may be used to avoid expenditure of judicial resources on actions that the Agency has already decided to reconsider.

C. Failure to Act

Section 304(a)(2) authorizes "any person" to sue EPA for its failure "to perform any act or duty under this chapter which is not discretionary with the Administrator."²⁵ Such actions must ordinarily be preceded by a 60-day notice to EPA.²⁶ Citizen suits against EPA may be brought in federal district court, and attorneys fees and costs may be available to the plaintiff.

Citizen actions against EPA may only be brought concerning alleged failures to act. Suits for judicial review of actions that EPA has already taken (except for the assessment of administrative penalties under § 113) may be brought only in the courts of appeals under § 307. Moreover, relief is available under § 304 only for failures to comply with nondiscretionary duties. Such duties may be found either in the Act itself or in other applicable laws, such as the APA.

Although the Clean Air Act imposes a variety of nondiscretionary duties on EPA, the Agency's record in complying with such mandates — particularly those involving specific statutory deadlines for action — has been mixed at best. As a result, § 304 has been invoked by a variety of parties, including environmental groups, industry, and even state agencies, to compel EPA to comply with its nondiscretionary obligations under the Act, including the promulgation of regulations and the review of SIPs.²⁷ Courts have entered orders in such actions compelling EPA to act and, where such orders are not complied with, holding the Agency in contempt.²⁸ With a new wave of tasks and strict deadlines assigned to EPA under the 1990 amendments, it is likely that these types of citizen suits will continue and even increase in number in the future.

Failure by EPA to perform a discretionary act is generally not subject to judicial review.²⁹ However, if the statute establishes a clear duty to take some action by a certain date, leaving only the content of that action to EPA's discretion, the district court may compel EPA to [22 ELR 10315] act.³⁰ Judicial relief may also be available in cases in which there is no specific statutory deadline for action if EPA has failed to act within a reasonable time. Any suit involving unreasonable delay must be preceded by a 180-day notice to the Agency.³¹

D. Deadlines and Standard of Review

A petition for review of a final agency action must be filed within 60 days from the date on which notice of the action appears in the Federal Register. This requirement is jurisdictional and may be waived only if the petition for review is based solely on grounds arising at a later time. In such a case, the petition must be filed within 60 days of the date on which the grounds for review first arise.³²

The judicial review provisions of § 307(b)(1) constitute the only opportunity that is available under the statute to challenge a final EPA action that is subject to those provisions. If review of a regulation could have been obtained under § 307(b)(1), a source may not challenge the regulation in any subsequent enforcement proceedings, either civil or criminal.³³ Nor may a party seeking judicial review of a revised regulation challenge aspects of the regulation that have not been changed and that could have been challenged on review of the original regulation.³⁴

In reviewing the merits of any regulations promulgated under § 307(d), the court may invalidate a regulation only if the regulation is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or if it is unconstitutional or contrary to the statute.³⁵ Objections to procedures used in promulgating a regulation may ordinarily be presented on appeal only if they were raised during the public comment period.³⁶ Judicial review of such procedural objections is subject to an "arbitrary and capricious" standard, and procedural errors will invalidate a regulation only if they are sufficiently serious and "central" to raise a substantial likelihood that the final result would otherwise have been different.³⁷

1. For example, § 110(a) expressly requires states to provide "reasonable notice and public hearings" before promulgating a state implementation plan (SIP).

2. 42 U.S.C. § 7607, ELR STAT. CAA 136.

3. 42 U.S.C. §§ 7604, 7607, ELR STAT. CAA 134, 136.

4. Activities to which the procedures apply are listed in § 307(d)(1). 42 U.S.C. § 7607(d)(1), ELR STAT. CAA 137.

5. 5 U.S.C. §§ 500-559, ELR STAT. ADMIN. PROC. 003-006.

6. Unless otherwise specified in the Act, actions other than those listed in § 307(d)(1) are subject to ordinary APA requirements. See Sierra Club v. Thomas, 828 F.2d 783, 17 ELR 21198 (D.C. Cir. 1987).

7. Clean Air Act (CAA) § 307(d)(3), 42 U.S.C. § 7607(d)(3), ELR STAT. CAA 137. If the proposed rule relates to any subject on which the Scientific Review Committee and/or the National Academy of Sciences has made findings, recommendations, or comments, that information must be provided in the notice.

8. CAA § 307(d)(3), (4), 42 U.S.C. § 7607(d)(3), (4), ELR STAT. CAA 137-38.

9. CAA § 307(d)(5), 42 U.S.C. § 7607(d)(5), ELR STAT. CAA 138.

10. Id.

11. CAA § 307(d)(10), 42 U.S.C. § 7607(d)(10), ELR STAT. CAA 138.

12. CAA § 307(d)(6)(c), 42 U.S.C. § 7607(d)(6)(c), ELR STAT. CAA 138. The docket for the rulemaking therefore becomes the exclusive record for judicial review of the final rule. CAA § 307(d)(7), 42 U.S.C. § 7607(d)(7), ELR STAT. CAA 138. Section 307(c) provides procedures under which the administrative record may be supplemented in limited circumstances if the petitioner can show reasonable grounds for failure to adduce the evidence during the comment period. 42 U.S.C. § 7607(c), ELR STAT. CAA 137.

13. CAA § 307(d)(6), 42 U.S.C. § 7607(d)(6), ELR STAT. CAA 138.

14. CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1), ELR STAT. CAA 136-37. Regulations of "national applicability" and other actions that are based on determinations "of nationwide scope or effect" are reviewable only in the D.C. Circuit. Approvals of SIPs, new source review decisions, and other actions that are "local or regionally applicable" may be challenged only in the court of appeals in the circuit in which the affected area is located. Id.

15. CAA § 304(a)(2), 42 U.S.C. § 7604(a)(2), ELR STAT. CAA 135.

16. Abramowitz v. EPA, 832 F.2d 1071, 18 ELR 20151 (9th Cir. 1987); Bethlehem Steel Corp. v. EPA, 782 F.2d 645, 16 ELR 20268 (7th Cir. 1986); Indiana & Mich. Elec. Co. v. EPA, 733 F.2d 489, 14 ELR 20506 (7th Cir. 1984); Maine v. Thomas, 690 F. Supp. 1106, 19 ELR 20506 (D. Me. 1988), aff'd, 874 F.2d 883, 19 ELR 21046 (1st Cir. 1989); see also S. REP. No. 228, 101st Cong., 1st Sess. 374 (1989).

17. Compare Delaney v. EPA, 898 F.2d 687, 20 ELR 20460, (9th Cir.), cert. denied, 111 S. Ct. 556 (1990) (ordering EPA to promulgate FIP) with Bethlehem Steel Corp., 782 F.2d at 645, 16 ELR at 20268 (declining to consider request for order compelling EPA to promulgate regulations).

18. Section 307(b) confers jurisdiction on the courts of appeals only to review "final" actions.

19. See, e.g., Solar Turbines, Inc. v. Seif, 879 F.2d 1073, 19 ELR 21091 (3d Cir. 1989); see also Chafee-Baucus Statement of Senate Managers, reprinted in 136 CONG. REC. S16933, S16953 (Oct. 27, 1990). A notice of violation is also not reviewable until and unless EPA follows it up by filing a civil action. Pacificorp v. Thomas, 883 F.2d 661, 20 ELR 20086 (9th Cir. 1988).

20. Greater Cincinnati Chamber of Commerce v. EPA, 879 F.2d 1379, 19 ELR 21383 (6th Cir. 1989). Some courts have also held that EPA's disapproval of a SIP is not reviewable if further action is required before a source is made subject to enforceable regulations. Utah Int'l, Inc. v. EPA, 478 F.2d 126, 3 ELR 20407 (10th Cir. 1973); see Bethlehem Steel Corp., 782 F.2d at 645, 16 ELR at 20268. However, review does appear to be available if further state or federal action is not required following the disapproval action (e.g., if the disapproval involves a nonmandatory provision of the SIP). See Big Rivers Elec. Corp. v. EPA, 523 F.2d 16, 5 ELR 20532 (6th Cir.), cert. denied, 425 U.S. 934 (1976).

21. Hawaiian Elec. Co. v. EPA, 723 F.2d 1440, 14 ELR 20328 (9th Cir. 1984).

22. Her Majesty v. EPA, 912 F.2d 1525, 20 ELR 21354 (D.C. Cir. 1990); Sierra Club v. Thomas, 828 F.2d 783, 17 ELR 21198 (D.C. Cir. 1987).

23. West Penn Power Co. v. EPA, 860 F.2d 581, 19 ELR 20221 (3d Cir. 1988).

24. CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1), ELR STAT. CAA 136-37; see S. REP. No. 228, supra note 16, at 372.

25. 42 U.S.C. § 7604(a)(2), ELR STAT. CAA 135.

26. CAA § 304(b)(2), 42 U.S.C. § 7604(b)(2), ELR STAT. CAA 135.

27. See, e.g., NRDC v. Thomas, 705 F. Supp. 1, 19 ELR 20048 (D.D.C. 1988); Sierra Club v. Gorsuch, 551 F. Supp. 785, 13 ELR 20231 (N.D. Cal. 1982).

28. See Sierra Club v. Ruckelshaus, 602 F. Supp. 892, 15 ELR 20080 (N.D. Cal. 1984).

29. Bethlehem Steel Corp. v. EPA, 782 F.2d 645, 16 ELR 20268 (7th Cir. 1986).

30. EDF v. Thomas, 870 F.2d 892, 19 ELR 20660 (2d Cir.), cert. denied sub nom. Alabama Power v. EDF, 110 S. Ct. 537 (1989). A formal decision by EPA not to act or to defer action is reviewable in the court of appeals. CAA § 307(b)(2), 42 U.S.C. § 7607(b)(2), ELR STAT. CAA 137; see Maine v. Thomas, 690 F. Supp. 1106, 19 ELR 20506 (D. Me. 1988), aff'd, 874 F.2d 883, 19 ELR 21046 (1st Cir. 1989).

31. CAA § 304(a), 42 U.S.C. § 7604(a), ELR STAT. CAA 134-35 as amended. This amendment overrules in part the D.C. Circuit's decision in Sierra Club v. Thomas, 828 F.2d 783, 17 ELR 21198 (D.C. Cir. 1987) by establishing jurisdiction over such actions in the district courts. The legislative history indicates that the courts are to have broad discretion to fashion appropriate schedules in such cases, and should take into consideration such factors as limitations on agency resources, the complexity of the task, and the time needed for meaningful public participation. See 136 CONG. REC. E3673 (Nov. 2, 1990) (extended remarks by Rep. Oxley).

32. This 60-day requirement applies even if a petition for reconsideration is pending. CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1), ELR STAT. CAA 135.

33. CAA § 307(b)(2), 42 U.S.C. § 7607(b)(2), ELR STAT. CAA 135; see United States v. Ethyl Corp., 761 F.2d 1153, 15 ELR 20589 (5th Cir. 1985), cert. denied, 474 U.S. 1070 (1986). However, in Adamo Wrecking Co. v. United States, 434 U.S. 275, 8 ELR 20171 (1978), the Supreme Court held that a defendant who was charged with a criminal violation of an "emission standard" was not precluded by this section from challenging whether the regulation that it was charged with violating was in fact an "emission standard."

34. See National Ass'n of Demolition Contractors v. Costle, 565 F.2d 748, 750 n.2, 7 ELR 20763 (D.C. Cir. 1977).

35. CAA § 307(d)(9), 42 U.S.C. § 7607(d)(9), ELR STAT. CAA 138.

36. If it was "impracticable" to raise the objection during the public comment period (or if the objection arose after the public comment period closed), and if the objection is of "central relevance," then EPA may be required to reopen the rule for reconsideration, correcting the procedural irregularity. CAA § 307(d)(7)(B), 42 U.S.C. § 7607(d)(7)(B), ELR STAT. CAA 138.

37. CAA § 307(d)(8), (d)(9)(D), 42 U.S.C. § 7607(d)(8), (d)(9)(D), ELR STAT. CAA 138.