Court Takes Issue with U.S. EPA Delay
In Avenal Power Center, LLC v. U.S. EPA, the U.S. District Court for the District of Columbia rejected U.S. EPA's argument that despite the agency's failure to meet Congress' one-year statutory deadline for final agency action on a permit application, the most the Administrator could be required to do is to issue a decision appealable to the Environmental Appeals Board (EAB), characterizing it as an "oh so clever, but unsupportable, position." Among other things, the court noted:
The EPA has labored mightily to convince this Court that the temporal requirement enacted by Congress is somehow ambiguous and, therefore, this Court should defer to its interpretation under Chevron. *** Horsefeathers! The EPA's self-serving misinterpretation of Congress's mandate is too clever by half and an obvious effort to protect its regulatory process at the expense of Congress's clear intention. Put simply, that dog won't hunt. [Emphasis is ours.]
And:
Administrators of regulatory agencies derive their power from Congress's statutory enactments - not from their own discretionary regulatory pronouncements that are drafted for their assistance and convenience.
Good to remember. You can find the opinion here.
[Disclosure: Judge Leon is a former partner at the Vorys firm.]
