Be Careful What You Ask for: Attacking the Constitutionality of the Clean Air Act Operating Permit Program

This comment explores whether Congress went too far in its effort to guide the states in the control of air pollution through the operating permit program or whether the states merely got what they asked for and cannot use the Constitution as a weapon to roll back the course of pollution control. The comment will focus largely on Title V and the Virginia cases, but the Missouri decision will be used to fill in the many gaps left by the Fourth Circuit in its constitutional analysis. The constitutional issues addressed by the Missouri and Virginia courts are particularly relevant in light of a 1996 regulation under the Clean Water Act (CWA). This regulation amends the requirements for an approvable state pollutant discharge permit system (SPDES) program to include the same opportunity for judicial review by interested persons as is available under Article III of the United States Constitution. Prior to this new regulation, which became effective in 1996, there was no requirement that a state administering an SPDES program include an opportunity for judicial review as broad as Article III standing. Although development of state permit programs is not encouraged as vigorously in the CWA as in the CAA, this new regulation has already caused some controversy in Virginia and elsewhere. For example, in its final rule publication, the EPA noted that several individuals suggested that the regulation may unconstitutionally infringe upon states\u27 rights not to be sued without their consent. In answer to this concern, the EPA stated simply that if states are dissatisfied with the new regulation they could simply leave the administration of a permit program to the federal government. Another concern expressed by those commenting on the rule was that Virginia was being singled out because, at the time the rule was proposed, its judicial review statute enacted to implement the CWA permit program restricted review to an owner aggrieved and effectively barred all others from challenging the state\u27s issuance of a permit. This restriction prompted several environmental groups to petition the EPA to withdraw approval of Virginia\u27s program. The EPA did note in its final rule that Virginia had amended its statute in 1996, but stated that it had not made a final decision as to whether the amendment satisfied the new regulation. It appears from the above discussion that the stage is set for a renewed discussion of citizen\u27s standing to review state environmental agencies\u27 decisions regarding pollution permits. Given the lack of incentive for states to adopt their own SPDES programs, it is unclear whether the same vigorous challenges to the CAA will also plague the CWA. However, there is a possibility that, armed with two favorable decisions, the EPA or Congress may now reexamine other environmental statutes to find new ways to encourage states to regulate the way the EPA itself would. While it is doubtful that this possibility was envisioned by those who, prior to the 1990 amendments, requested some direction in implementing the CAA, it may be an answer that many citizens, companies, and state officials will get in the end. Since the imposition of sanctions is complete or imminent in at least two states and the new CWA regulations threaten to further drag out the debate, the constitutionality of the relevant CAA provisions is a major concern. To effectively examine the issues, Part II of this Comment provides background information, including the relevant provisions of the CAA and their legislative histories, regulatory action taken by the EPA in implementing the state permit program, the EPA\u27s decisions with regard to Virginia\u27s proposed permit program, and case law relevant to the constitutional issues. The constitutional arguments made by Missouri, Virginia, the EPA, and amici, and the courts\u27 analyses of those arguments, are set out in Part III. Part IV consists of a legal analysis of the courts\u27 opinions. Part discusses the policy reasons supporting a finding of constitutionality and possible impacts of a ruling in favor of Virginia and Missouri. Finally, Part V also concludes that the courts were correct in ruling against Virginia and Missouri for the legal and practical reasons previously discussed