Friedman v. Board of Environmental Protection

Maine Law Court upholds agency discretion to refuse to modify water quality certification


Appellants contend that the Superior Court erred in holding that the Board of Environmental Protection has nonreviewable discretion to decline to act on appellants’ petitions to modify water quality certifications issued to owners of hydropower projects on various Maine rivers by the Department of Environmental Protection. They also contend that the court erred in ruling that Board action on a petition to modify is never “final” because a new petition can be filed at a later date. Finally, they contend that even if the Board’s dismissals of the petitions are not final actions, the Rule 80C actions should not have been dismissed because the “no adequate remedy” exception applies. The Maine Law Court affirmed, concluding that once a license, water quality certificate, or other order has been issued by the Board, the statutes and regulations unambiguously provide that the Board has the authority to modify the certificate, but it is not required to do so. The decision to grant or deny a petition for modification lies in the agency’s sole discretion.

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Reference Info:Decision | State, 1st Circuit, Maine | United States

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