EPA Calendar?

It’s not very often that a judge freely uses exclamation points in an opinion. And it’s even rarer to find an opinion that cries “Horsefeathers!” in response to the defendant’s argument. But federal District Court Judge Richard Leon’s opinion in Avenal Power Center v. EPA bears both of these characteristics, but, perhaps even more surprising, both of these inclusions are completely merited.

The case. In February 2008, Avenal Power Center, LLC submitted to the Environmental Protection Agency (EPA) a Prevention of Significant Deterioration (“PSD”) permit application so that it could build a “state of the art 600 megawatt natural gas-fired power plant, the Avenal Energy Project.”

Since 1977, “Congress has required the Administrator of the EPA to grant or deny a permit application, filed under the CAA [Clean Air Act] within one year” (emphasis added). As such, after over two years of waiting, Avenal Power filed for judicial relief, asking the courts to force the EPA to make a decision (March 9, 2010).

The EPA offered two initial counter-arguments – both of which it withdrew – before settling on the following argument: Since the EPA’s creation of the Environmental Appeals Board (EAB), the final decision process is no-longer subject to the congressionally mandated one year timeframe. Rather, the “most the Administrator could now be required to do [in one year] is issue a decision that is appealable to the EAB.”

Judge Leon called “bs” on this argument and ordered that the EPA quickly issue a decision on Avenal’s permit.

Why Judge Leon’s exasperation is appropriate. The EPA’s position in this case is so absurd that Judge Leon should be commended for his comparative restraint. Consider the following:

First (and this is along the lines of the argument that Judge Leon made), executive agencies cannot change laws. Executive agencies – the EPA included – exist to enforce laws. If Congress says one year, then the law is one year, no matter how many internal checks and balances the EPA creates. As Judge Leon wrote, “It is axiomatic that an act of Congress that is patently clear and unambiguous … cannot be overridden by a regulatory process created for the convenience of an Administrator.”

To put it in terms perhaps more clear to the average reader: If your boss says a final report is needed by Wednesday, you can’t claim you fulfilled this requirement by writing the report on Tuesday night, but then giving it to your intern who can’t return until Thursday. No matter what went on in your internal system, the fact remains that the report did not make it to your boss by Wednesday.

Second, the EPA’s argument presupposes that it gave the permit application to the EAB within one year.  But it didn’t even do that. Even taking into account its own internal divisions, the EPA did not issue a decision within one year.

Third, in light of yesterday’s economic report that the country only generated 54,000 jobs in May and that the unemployment rate has gone back up to 9.1 percent, what on earth is the EPA thinking by taking its sweet time to assess a petition to create a huge power plant that will undoubtedly employ lots of American workers (both in its construction and its operation)?

Fourth, as WLF has noted on multiple recent occasions (see, for example, our May 9 op-ed feature in The New York Times), the price of gas is currently rather high (to put it mildly). Might it be a good idea to hustle along any proposals that seek to provide America with additional energy?

Judge Leon gave the EPA two exclamation points, but by my count, it deserved at least four.