Avenal Power Center, LLC prevailed in its lawsuit (Avenal Power Center, LLC v U.S. EPA, 2010 WL 6743488 (D.D.C.)) against U.S. EPA for its failure to grant or deny a PSD permit application for the construction of a natural gas-fired power plant within the statutorily mandated one-year period. Unfazed by the 1977 express statutory language in the Clean Air Act (see 42 U.S.C. § 7475(c)), EPA attempted to argue that the Environmental Appeals Board (EAB) appeals procedure, which in itself could take another 18 months, trumps the statute. “In essence, the EPA contends that Congress’s statutory mandate is subservient to EPA’s regulatory [EAB] review process, and as such this Court has no authority to require the administrator to comply with this statutory requirement . . . How absurd!” Judge Richard Leon ruled that administrators of regulatory agencies derive their power from Congress - - “not from their own discretionary regulatory pronouncements that are drafted for their . . . convenience.”
EPA finally tried to persuade the Court that it should defer to EPA’s interpretation of the statute, to which Judge Richard Leon replied: “that dog won’t hunt.” EPA was ordered to make an up-or-down decision on the permit application by May 27, 2011, which it did, approving the permit. Stay tuned because Earthjustice plans to get its old dog in the hunt by challenging the Agency’s issuance of the permit.