The comment period for Trump Administration’s proposed rule, Modernizing the Administrative Exhaustion Requirement for Permitting Decisions and Streamlining Procedures for Permit Appeals, recently closed. This proposal would make a variety of important changes to the structure of the Environmental Appeals Board (“EAB”), which reviews agency permitting decisions. These proposed changes could harm the overall effectiveness, independence, efficiency, and transparency of the permit review process.
The proposed rule’s key changes include:
- Mandatory alternative dispute resolution (ADR) before proceeding to judicial review
- Eliminating participation by amici curiae (“friends of the court”)
- Establishing term limits for the EAB judges
- Allowing EPA’s general counsel to issue binding legal interpretations and decide which decisions are precedential.
Different industry groups, environmental organizations, and concerned citizens commented on the proposed rule. The commenters highlighted concerns with limiting public participation, ignoring environmental justice concerns, and other likely impacts of the rule.
Three former EAB judges and a former EAB staff attorney expressed their opposition to the proposed changes. They remarked on the proposed prohibition of participation by amici, noting it would impose a serious barrier to public participation in the appeals process. One wrote: “Fundamentally, the proposal is at odds with the statutes and cited rationale upon which it relies.” For example, while the proposed rule emphasizes that it will streamline permit review, these commenters noted that the proposal will actually make the process longer.
Many commenters noted that the proposed rule would create environmental justice concerns. A representative of the Fond du Lac Band of Lake Superior Chippewa noted that in the proposal, EPA failed to consider tribal interests and environmental justice concerns. Others commented on the fact that the proposed rule itself may negatively impact environmental justice. For example, Earthjustice noted that the proposed rule changes the standard of review in the appeals process, making environmental justice concerns not reviewable by EAB judges. Earthjustice states that this change would remove “one of the very few mechanisms for accountability within EPA for environmental justice review.”
A representative for the American Lung Association commented on the potential adverse health impacts for communities near heavily polluting permittees. By requiring ADR, they wrote, the proposed rule essentially allows an industry “veto” whenever an outside group raises an appeal, disproportionately “favoring industry over health.”
Even proponents of the rule commented on aspects that could be harmful to the permitting review process. The Director of Environmental and Energy Policy at the Tennessee Valley Authority suggested that amicus participation should be available in limited circumstances rather than eliminated entirely. Similarly, a representative of Florence Copper Inc. likewise indicated the proposed changes could actually harm industry. They noted that the prohibition of amicus participation would also keep out helpful considerations for the permittees, not just for environmental groups opposing a particular permit. Moreover, despite the fact that one of the key goals announced by the proposed rule is reducing the time it takes to go through an appeal, this commenter noted the benefits of the time the EAB appeals process currently takes, as it may make any resulting permits more defensible in court if challenged.
Finally, a number of commenters noted that the comment period for this proposed rule was remarkably short, and fell over the holidays. They asked for an extension so more groups and parties could express their opinions on this notable and serious change to environmental permitting.
For more information on EPA’s changes to the EAB, please see: