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Environment & Energy Report

EPA Proposal Seeks to Speed Up Permit Dispute Process (1)

Dec. 2, 2019, 5:16 PMUpdated: Dec. 2, 2019, 7:49 PM

The EPA wants to speed up permit disputes that go before its Environmental Appeals Board, according to a proposed rule set to be published Dec. 3.

The proposed changes align with the Trump administration’s effort to speed up environmental permitting, which the administration says will boost economic growth. Under the new protocol, political officials from the Environmental Protection Agency could make binding decisions on issues pending before the in-house appeals board.

The proposal would allow parties to challenge an EPA permit either through alternative dispute resolution or in a hearing before the Environmental Appeals Board. If the parties don’t unanimously agree on either, the permit would become final and subject to litigation in federal court.

In a Federal Register notice, the EPA said the changes will “leverage the success of the EAB’s current ADR [alternative dispute resolution] program and empower the parties to decide for themselves the best, most efficient process to resolve their disputes.”

The EPA’s alternative dispute resolution program has resolved more than 90% of cases without litigation, the agency said.

The proposed changes also include a “new mechanism” for the EPA administrator, through the agency’s general counsel’s office, to issue a binding legal interpretation for any case or issue before the appeals board. The administrator and general counsel roles are both political positions.

“The intent of this proposal is to allow the Administrator, in specific cases, to retain authority as it pertains to legal interpretations,” the proposal says.

Other Changes in Proposal

Critics have said the proposed changes, which EPA Administrator Andrew Wheeler previewed in early November, are a bid to rush projects through without proper vetting, and limit communities’ right to contest permits.

The EPA’s proposal would also eliminate the board’s authority to review regional permits on its own, without an appeal from an interested party. It would also strike a provision that lets parties engage in disputes by filing amicus briefs.

And the proposal sets 12-year terms for appeals board judges, though the EPA administrator can renew them. Another part of the proposal would set up a new process for identifying which board opinions will be considered precedential.

Further, the proposed rule sets a 60-day deadline for the board to issue a final decision once an appeal has been fully briefed and argued, and limits the length of board opinions to “only as long as necessary to address the issues raised in an appeal.”

The proposal applies to the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and Resources Conservation and Recovery Act.

Former Officials Diverge on Proposal

Joseph Goffman, who served as the EPA’s associate assistant administrator for climate during the Obama administration, said the elimination of the amicus process would effectively narrow who has access to the board “to have a full range of considerations presented, including environmental justice.”

Goffman, now executive director at the Environmental and Energy Law Program at Harvard University, said the changes could also hamstring the board’s ability to build a record that makes permit decisions “bulletproof” if they later end up in federal litigation.

“The other worry is that the agency is making a penny-wise pound-foolish bet because if the EAB is less effective in providing quality control to permits, there’s going to be a litigation risk at the back end that serves the agency and permittees poorly,” he said.

Erik Baptist, a former EPA deputy assistant administrator in the Office of Chemical Safety and Pollution Prevention during the Trump administration, said the current regime lets permits “become mired in EAB proceedings, with potentially endless regional permit reviews and EAB remands.”

If the proposal becomes final, some permit applicants may choose to engage the EAB if they believe there will be a court challenge to their permit, on the belief that board review will strengthen the validity of the permit, said Baptist, now a partner at Wiley Rein LLP.

He also said the proposed changes help reestablish the EPA administrator’s ability to have the final say in a permit decision. Over the years the board has drifted away from that framework, often overriding decisions by regional administrators who were appointed by and are acting on behalf of the administrator, according to Baptist.

But Goffman said the change could upset the EAB’s politically neutral reputation.

“The status quo is that the EAB is essentially impervious to political pressure,” he said. Allowing the administrator to step in to decide legal questions would eliminate the “quarantine that separates the board from any political actor.”

Wheeler, in a Nov. 6 statement, said: “Under President Trump’s leadership, we have made the agency more accountable to the public and with this proposal we are continuing to build on that success. The agency now works more collaboratively with the states and tribes than it did 27 years ago and the EAB’s new role will reflect this reality.”

The public will have 30 days to submit comments once the proposed rule is published in the Federal Register.

To contact the reporters on this story: Stephen Lee in Washington at stephenlee@bloombergenvironment.com; Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com