“Final actions” of the EPA under the Clean Air Act are subject to direct review by a United States Court of Appeals. 42 U.S.C. § 7607(b)(1). In a decision issued on July 3, 2014, in Luminant Generation Company, LLC v. United States Environmental Protection Agency, No. 12-60694 (5th Cir. 2014), the United States Court of Appeals for the Fifth Circuit considered for the first time whether an EPA notice of violation issued under the Clean Air Act constituted an EPA final action.
The Fifth Circuit held that an EPA action is not a final action unless the action satisfies two requirements. First, the action must mark the end of the agency’s decision-making process. Second, the action must determine rights and obligations or result in legal consequences.
As to the first prong, the EPA’s decision-making process in no way ends with the issuance of a notice of violation. After the EPA issues a notice of violation, it can choose any number of courses of action. The EPA can issue an order, initiate proceedings to impose an administrative penalty, file a civil action, withdraw the notice, amend the notice or simply do nothing.
A notice of violation also fails to satisfy the second prong of the final action test. The Clean Air Act determines the alleged violator’s rights and obligations, not the notice of violation. Additionally, issuance of a notice of violation, by itself, does not result in any legal consequences. Again, after the notice is issued, the EPA simply could choose to do nothing.
The Fifth Circuit, therefore, concluded that a Clean Air Act notice of violation was not a final action. The case was dismissed for lack of subject matter jurisdiction. The Fifth Circuit’s decision in Luminant is consistent with those of the other circuit courts that have considered this issue. Even so, prior to Luminant, prudence dictated that a party within the Fifth Circuit subject to a notice of violation should petition the Fifth Circuit for review or risk losing the right to challenge the notice in later enforcement proceedings. See 42 U.S.C. § 7607(b)(2).