Sierra Club v. U.S. Environmental Protection Agency

Avenal Power Center LLC (“Avenal Power”) applied to the United States Environmental Protection Agency (“EPA”) for a Prevention of Significant Deterioration Permit (“Permit”), to build and operate the Avenal Energy Project, a 600 megawatt natural gas-fired power plant in the city of Avenal, California. Although EPA had a statutory duty under the Clean Air Act to either grant or deny the Permit application within one year, 42 U.S.C. § 7475 (c), it failed to do so. After the deadline passed but before taking any final action, EPA tightened the applicable air quality standards. Avenal Power filed suit and sought to compel EPA to issue the Permit under the old standards that would have applied had EPA acted within the statutory deadline. Initially, EPA responded that it could not legally do so, because the Clean Air Act explicitly requires any newly constructed facility to employ the best available control technology (“BACT”) for regulated pollutants and meet air quality standards in effect at the time a permit is issued. See 42 U.S.C. § 7475 (a)(3)-(4). Months later, however, EPA reversed course and granted Avenal Power the Permit without regard to the new regulations, which…