The Fifth Circuit holds it lacks subject matter jurisdiction to hear petitions for review of Clean Air Act notices of violation

“Final actions” of the EPA under the Clean Air Act are subject to direct review by a United States  Court of Appeals. 42 U.S.C. § 7607(b)(1). In a decision issued on July 3, 2014, in Luminant  Generation Company, LLC v. United States Environmental Protection Agency, No. 12-60694 (5th  Cir. 2014), the United States  Court of Appeals for the Fifth Circuit considered for the first time whether an EPA notice of  violation issued under the Clean Air Act constituted an EPA final action.

The Fifth Circuit held that an EPA action is not a final action unless the action satisfies two  requirements. First, the action must mark the end of the agency’s decision-making process. Second,  the action must determine rights and obligations or result in legal consequences.

As to the first prong, the EPA’s decision-making process in no way ends with the issuance of a  notice of violation. After the EPA issues a notice of violation, it can choose any number of  courses of action. The EPA can issue an order, initiate proceedings to impose an administrative  penalty, file a civil action, withdraw the notice, amend the notice or simply do nothing.

A notice of violation also fails to satisfy the second prong of the final action test. The Clean  Air Act determines the alleged violator’s rights and obligations, not the notice of violation.  Additionally, issuance of a notice of violation, by itself, does not result in any legal  consequences. Again, after the notice is issued, the EPA simply could choose to do nothing.

The Fifth Circuit, therefore, concluded that a Clean Air Act notice of violation was not a final  action. The case was dismissed for lack of subject matter jurisdiction. The Fifth Circuit’s  decision in Luminant is consistent with those of the other circuit courts that have considered this  issue. Even so, prior to Luminant, prudence dictated that a party within the Fifth Circuit subject  to a notice of violation should petition the Fifth Circuit for review or risk losing the right to  challenge the notice in later enforcement proceedings. See 42 U.S.C. § 7607(b)(2).