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Monday, July 28, 2008

Ind. Decisions - Interesting Illinois decision today from 7th Circuit re the CAA

In Citizens Against Ruining the Environment, et al v. EPA and Midwest Generation (Petitions for Review of Orders of EPA), a 16-page opinion, Judge Evans writes:

In this consolidated appeal of three related administrative review proceedings, the petitioners, several environmental protection groups and the attorney general of the State of Illinois, challenge the failure of the federal Environmental Protection Agency (EPA) to object to certain operating permits proposed by the Illinois Environmental Protection Agency (IEPA) pursuant to the Clean Air Act (CAA). The petitioners contend that the Administrator was obligated to object because they clearly “demonstrated” that the permits were not in compliance with the CAA. See 42 U.S.C. § 7661d(b)(2). The EPA, on the other hand, maintains that the Administrator reasonably exercised his discretion in determining that the petitioners did not “demonstrate” a violation because their petitions called for further investigation and analysis, a task the Administrator found to be more appropriately carried out through the CAA’s enforcement process. The petitioners argue that the CAA grants the Administrator no such discretion. * * *

[Among other statements in the opinion, this at p. 11] In sum, the attorney general has failed to explain why we have jurisdiction over an internal conflict between an office and an agency under the executive branch of the same state government. Under these circumstances, it seems appropriate for the governor, rather than the federal courts, to resolve the controversy; yet, there is no evidence that the state has taken any steps internally to change the IEPA’s decision. The IEPA has the duty to make Title V permit decisions, so it appears to be the agency responsible for making Illinois policy in that arena. * * *

For the foregoing reasons, the attorney general’s petitions for review (Nos. 07-3198 and 07-3199) are DISMISSED, and the environmental groups’ petition for review (No. 07- 3197) is DENIED.

Posted by Marcia Oddi on July 28, 2008 03:53 PM
Posted to Ind. (7th Cir.) Decisions