The Environmental Protection Agency is finalizing major changes to how it reviews permitting disputes, in an effort to speed decisions that environmentalists say will jeopardize the public’s ability to challenge projects that could harm their health.
The regulations make changes to how the EPA’s Environmental Appeals Board, staffed by career appointees, hears disputes over air, water, waste, and other pollution permits issued by the agency’s regional offices or by states. The revisions are the first major update to the board’s administrative appeals process since it was created in 1992 under George H.W. Bush.
“A permit that’s unreasonably delayed can really affect the defendant’s critical business decisions and allocations of capital,” said Matt Leopold, the EPA’s general counsel, in an interview with the Washington Examiner. “We want to right-size review with this rule, and then do what’s necessary and adequate under the law without creating unreasonable delays.”
The EPA, under its final rule signed Wednesday, would set a 60-day deadline after appeals have been fully briefed and argued for the EAB’s three judges to decide on a permit. The final regulations would also allow for the agency’s administrator to weigh in during an appeal, an authority Leopold says has always been available, and set 12-year term limits for the EAB judges.
In addition, the final regulations would eliminate the EAB’s long-standing ability to review a permit out of its own accord, known as sua sponte review. Leopold said such a review to “second-guess” the EPA regional office’s permitting work, even if no one had challenged it, was “totally unnecessary.”
Environmentalists have suggested that the Trump administration is seeking to undermine the EAB’s authority with the changes.
“The EAB is known for making level-headed, well-informed, incredibly well-reasoned, and objective decisions in connection with the exercise of their authority,” said Patrice Simms, Earthjustice’s vice president of healthy communities. Simms, who previously served as a counsel to the EAB, said the board has “almost never” been overturned by a federal court.
“This administration just wants to be lawless, and the EAB stands in the way of that lawlessness,” he added. “If people have a legal right to appeal permits to this board, there’s nothing the administration can do to move them out of the way.”
Nonetheless, the EPA did back off some sharply criticized elements of its proposal issued in November.
For example, the proposal would have required all parties, including the company applying for the permit, to agree for an appeal to move forward. Environmentalists had slammed that aspect of the proposal as creating a one-sided review, essentially offering industry “veto power” over whether an appeal is heard.
The final rule, however, makes no changes to who can petition for an appeal and the way in which that appeal is allowed to move forward, Leopold said. The final rule would also continue to allow for outside groups to submit amicus briefs during EAB appeals, something the EPA had initially proposed to eliminate, he added.
Environmentalists are likely to still have concerns with the EPA’s final rule, especially aspects that limit the board’s power and allow the agency’s political appointees a larger say over the appeals process.
The ability of the EPA administrator or general counsel to weigh in during appeals with a legal opinion, for example, is an attempt to make the EAB a “less objective” decision-maker, Simms of Earthjustice said. That provides politically appointed officials “with the authority to essentially supersede any legal question that might go before the EAB,” he added.
“If it becomes a really politicized process, then those decisions about what’s required in the context of environmental permitting can just go back and forth and back and forth,” Simms said. “That idea of consistency and certainty, both how protected people will be and what the regulatory obligations are for regulated entities, goes out the window.”
Environmentalists have also said the EPA’s directive that the EAB consider only legal issues and not policy issues, an aspect the agency maintained in the final rule, would undercut the board’s ability to weigh whether EPA permits complied with requirements under a Clinton-era executive order to address the disproportionate effects of pollution on minority and low-income people.
In a letter sent Wednesday, Sen. Tom Carper of Delaware, the top Democrat on the Senate Environment committee, called on the EPA to abandon changes to the EAB’s authority. The proposal would “completely abdicate EPA’s responsibility for considering environmental justice impacts in permit appeals,” the senator wrote to EPA Administrator Andrew Wheeler.
The effort is “yet another short-sighted attack on the ability of communities, including low-income communities and communities of color, to have a meaningful voice in projects that impact their health,” Carper added.
Leopold dismissed Carper’s criticism, arguing that some of his complaints were unfounded due to changes the EPA had made in the final rule. He also said the EPA is already working to comply with the environmental justice executive order “day in and day out,” including in its permitting decisions.
In addition, Leopold said parties will still have an opportunity to challenge permitting decisions in court.
“This is not the final step for disputes about an EPA permit,” Leopold said, calling the EAB an “interim step” and adding: “We are confident that courts are going to protect people’s rights.”
