Utah Ex Rel. Utah Department of Environmental Quality, Division of Air Quality v. United States Environmental Protection Agency
2014 WL 1778143
10th Cir.2014Background
- The Clean Air Act requires states to submit plans reducing visibility-impairing emissions; Utah submitted a revised plan to the EPA.
- The EPA published a partial rejection of Utah’s plan in the Federal Register on December 14, 2012.
- The statute (42 U.S.C. § 7607(b)(1)) requires petitions for review of EPA actions to be filed within 60 days of Federal Register publication; the deadline is jurisdictional.
- Utah and PacifiCorp filed petitions for review on March 21–22, 2013, more than 60 days after the December 14 publication.
- Petitioners argued (1) an exception for grounds arising after the 60th day, (2) the EPA effectively changed the promulgation date when it later stated a March 25, 2013 deadline, (3) the reopener doctrine, and (4) equitable grounds to excuse untimeliness.
- The court rejected each argument, holding the petitions untimely and dismissing them for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §7607(b)(1)’s 60-day deadline applies when grounds arise after the 60th day | PacifiCorp: exception applies because some grounds arose after 60 days | EPA: legal basis for review existed at publication; deadline jurisdictional | Court: exception inapplicable — grounds existed on Dec. 14, 2012; untimely |
| Whether EPA’s later Federal Register notice (Jan. 22, 2013) explicitly changed the promulgation date | Utah/PacifiCorp: EPA’s Jan. 22 notice reset the 60-day clock to Mar. 25, 2013 | EPA: Jan. 22 notice was a correction, not an explicit change of promulgation date | Court: §23.3 requires an explicit change; EPA did not explicitly change date; notice did not restart jurisdictional clock |
| Whether the reopener doctrine permits late filing | PacifiCorp: reopener doctrine allows review when agency reexamines its decision | EPA: the Jan. 22 notice did not reexamine the rejection of Utah’s plan | Court: even if doctrine adopted, it doesn’t apply — EPA made no substantive reconsideration |
| Whether equity can save untimely petitions | Utah/PacifiCorp: dismissal is inequitable because they relied on EPA’s March 25 deadline | EPA: jurisdictional time limits cannot be equitably tolled by courts | Court: jurisdictional deadline cannot be excused for inequity; petitions dismissed |
Key Cases Cited
- Okla. Dep’t of Envtl. Quality v. EPA, 740 F.3d 185 (D.C. Cir.) (treating §7607(b)(1)’s 60-day deadline as jurisdictional)
- Sanders v. United States, 373 U.S. 1 (1963) (defining “grounds” as sufficient legal basis for relief)
- Nat’l Mining Ass’n v. U.S. Dep’t of the Interior, 70 F.3d 1345 (D.C. Cir.) (describing reopener doctrine requirements)
- Pub. Citizen v. Nuclear Regulatory Comm’n, 901 F.2d 147 (D.C. Cir.) (reopener doctrine applies when agency undertakes substantive reconsideration)
- P & V Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021 (D.C. Cir.) (reopener doctrine’s contextual test for reconsideration)
- Bowles v. Russell, 551 U.S. 205 (2007) (jurisdictional deadlines cannot be excused for equitable hardship)
- Council Tree Investors, Inc. v. FCC, 739 F.3d 544 (10th Cir.) (not deciding whether to adopt reopener doctrine)
- HRI, Inc. v. EPA, 198 F.3d 1224 (10th Cir.) (declining to adopt the reopener doctrine)