EPA Proposes to Accelerate Its Permit Appeal Process

April 14, 2020

Originally published by The Regulatory Review

The U.S. Environmental Protection Agency (EPA) recently proposed a rule to streamline the process for appealing a permit to the agency’s Environmental Appeals Board (EAB).

The EAB is an appellate tribunal within EPA that hears administrative appeals of permit decisions under the EPA-administered environmental statutes. Due to the doctrine of exhaustion of administrative remedies, a permit applicant cannot appeal an adverse permit decision to a federal court until it first appeals the decision to the EAB. Parties sometimes spend years navigating the permit appeal process, expending time and resources along the way.

The new rule proposes a variety of mechanisms that would likely speed up the permit appeal process. For example, the main focus of the proposed rule is to create an alternative dispute resolution (ADR) program that is opt-out, unlike the existing program that is opt-in, with the goal of more quickly resolving disputes. Another example is the proposed requirement that EAB issues a final decision within 60 days after briefs are filed and oral arguments are complete.

But two of the proposed changes—a proposed reduction of the EAB’s scope of review and the elimination of amicus curiae participation—are unlikely to speed up the permit appeal process and could result in unintended consequences.

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