EPA Proposes First Updates to Environmental Appeals Board In 27 Years
The U.S. Environmental Protection Agency (EPA) is proposing to streamline and modernize the review of permits by the agency’s Environmental Appeals Board (EAB) while providing more flexibility to regulated parties, states and tribes, and the public. Under this proposal, interested parties would be empowered to choose the option for resolving a permit dispute that is best suited to their needs.
The Agency’s proposal aims to facilitate speedy resolution of permit disputes—either through alternative dispute resolution, a hearing before the Board, or a more timely judicial review. EPA proposes several additional reforms designed to streamline the current administrative appeal process and to provide appropriate checks and balances on how the EAB exercises its delegated authority. The Agency is seeking broad input through the public comment process on these proposed changes.
“Under President Trump’s leadership, we have made the Agency more accountable to the public and with this proposal, we are continuing to build on that success,â€Â said EPA Administrator Andrew Wheeler. “The Agency now works more collaboratively with the states and tribes than it did 27 years ago and the EAB’s new role will reflect this reality.â€
The proposal’s key elements are designed to simplify the review process, expedite permitting, and allow parties who would like to challenge EPA’s permits in court to do so more quickly. The proposal builds on the Board’s successful voluntary Alternative Dispute Resolution (ADR) program that, to date, has resolved over 90 percent of cases that have gone through the program without litigation. The EAB’s ADR program promotes faster resolution of issues and more creative, satisfying and enduring solutions. The proposal provides parties challenging EPA’s permits with options to resolve their disputes, including ADR or a traditional appeal before Board. All parties would have a voice, and if they do not unanimously agree on the path forward, the permit becomes final and can be challenged in federal court without going through the additional administrative processes within the EPA.
The proposal also seeks to clarify the scope and standard of EAB review; remove a provision authorizing participation in appeals by amicus curiae, and eliminate the EAB’s authority to review Regional permit decisions on its own initiative in the absence of an appeal brought by an interested party. EPA also includes new deadlines for EAB action and other provisions to promote internal efficiency.
Finally, EPA also proposes to set twelve-year terms for EAB Judges in lieu of the indefinite terms currently in place; a new process to identify which EAB opinions will be considered precedential; and a new mechanism by which the Administrator, through the General Counsel, can issue a dispositive legal interpretation in any matter pending before the EAB.
These EAB reforms are in line with the Trump Administration’s efforts to reform and modernize EPA which include:
- A directive to end the controversial “sue and settle†practice which removes the ability of third-party groups to circumvent the regulatory process and requires the Agency to engage in actions without public comment.
- Reforming EPA’s science advisory committees, to ensure independence, geographic diversity, integrity.
- Implementing EPA’s Lean Management Systems and creating the Office of Continuous Improvement which measures progress made on 400 metrics and provides accountability to the public.
- Realigning the Agency’s regional offices to ensure clarity and consistency in the Agency’s functions from Headquarters to the local level.
- EPA also took steps to modernize and clear out our FOIA backlog. The steps the Trump Administration has taken will bring EPA into compliance with federal law and continue to be responsive to the public despite a 400% increase in FOIA requests since January 2017.
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