Thursday, September 4, 2014

Tenth Circuit Reaffirms that Clean Air Act § 307(b)’s Timing and Venue Limitations Are Jurisdictional, Highlighting Circuit Split

On September 3, the Tenth Circuit (Bacharach, Seymour, Murphy) issued a decision denying rehearing in Utah v. EPA, No. 13-9536.  This case arose out of EPA’s decision on December 14, 2012, to reject proposed revisions to Utah’s State Implementation Plan under the Clean Air Act.  EPA’s notice of its decision inadvertently neglected to highlight the sixty-day deadline under Clean Air Act § 307(b) for filing a petition for review.  EPA attempted to correct its error by issuing a notice on January 22, 2013, that parties would have until March 25, 2013, to file a petition for review.  Utah and other petitioners, relying on EPA’s statement, filed petitions for review shortly before March 25, 2013.  On May 6, 2014, the Tenth Circuit—over the petitioners’ and EPA’s objections—dismissed for lack of jurisdiction, holding that the sixty-day deadline ran from December 14, 2012.  Utah v. EPA, 750 F.3d 1182 (10th Cir. 2014).  The petitioners filed for rehearing, contending that the sixty-day deadline is not jurisdictional.  Contrary to the Seventh Circuit’s decision last week in Clean Water Action Council of Northeastern Wisconsin v. EPA, the Tenth Circuit reaffirmed its prior precedent concluding that the sixty-day deadline is jurisdictional, reasoning (a) that Congress “used jurisdictional terminology” in the statute; (b) that the legislative history indicated Congress intended the deadline to be strictly applied and that courts could consider untimely petitions only based on new information; and (c) that the sixty-day deadline “serves a jurisdictional function by restricting the congressional waiver of sovereign immunity.”  

—Todd Aagaard

http://lawprofessors.typepad.com/environmental_law/2014/09/tenth-circuit-reaffirms-that-clean-air-act-307bs-timing-and-venue-limitations-are-jurisdictional-hig.html

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