Buckeye Power, Inc. v. Environmental Protection Agency
481 F.2d 162 (1973)
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Rule of Law:
An agency's approval of a state implementation plan under the Clean Air Act is informal rulemaking subject to the Administrative Procedure Act's requirement to allow for public comment. Claims of technological or economic impossibility are not required to be heard in a full adjudicatory hearing at the plan approval stage but may be raised as a defense in subsequent enforcement proceedings.
Facts:
- Following the Clean Air Act Amendments of 1970, the states of Ohio and Kentucky created and submitted state implementation plans (SIPs) to the Environmental Protection Agency (EPA) to meet national air quality standards.
- Buckeye Power, Inc. and other public utility companies operated coal-burning power plants within Ohio and Kentucky.
- These utility companies alleged that there was no technologically feasible method to remove enough sulfur from their emissions to comply with the standards set forth in the proposed SIPs.
- The companies claimed that compliance with the plans would force them to shut down most of their generating plants, as they were also unable to switch to 'clean fuels' like natural gas due to their unavailability.
- The EPA Administrator approved the Ohio and Kentucky SIPs without holding a hearing or allowing interested parties, including the utility companies, to submit written comments, data, or arguments regarding the plans.
Procedural Posture:
- The Administrator of the Environmental Protection Agency (EPA) approved the air pollution implementation plans submitted by the states of Ohio and Kentucky.
- Buckeye Power, Inc. and other public utility companies (Petitioners) filed a petition for review of the Administrator's action directly in the United States Court of Appeals for the Sixth Circuit, as authorized by the Clean Air Act.
- The Petitioners then filed a motion in the Court of Appeals seeking to require the EPA to supplement the record and to remand the case to the agency for further proceedings.
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Issue:
Does the EPA Administrator's approval of a state's air pollution implementation plan, without providing interested parties an opportunity to participate through the submission of data and comments, violate the procedural requirements of the Administrative Procedure Act?
Opinions:
Majority - Weick, Circuit Judge.
Yes. The EPA Administrator's approval of a state's air pollution implementation plan without allowing public participation violates the Administrative Procedure Act (APA). The approval of state plans constitutes informal rulemaking under Section 553 of the APA, which requires the agency to give interested persons an opportunity to participate through the submission of written data, views, or arguments. The Administrator's failure to do so, by building no record and not articulating the basis for his actions, contravenes the APA and renders meaningful judicial review impossible. However, a full, adjudicatory-type hearing for these claims is not required because the Clean Air Act does not mandate that the approval be made 'on the record after opportunity for an agency hearing.' Claims of technological or economic impossibility can instead be raised as a defense in subsequent enforcement actions.
Analysis:
This decision establishes that the EPA's approval of state implementation plans is a form of informal rulemaking subject to the fundamental notice-and-comment procedures of the Administrative Procedure Act. It balances the need for agency efficiency under tight statutory deadlines with the due process rights of affected parties. By deferring the complex, individualized claims of technological and economic impossibility to future enforcement proceedings, the court prevents the plan approval process from becoming paralyzed while still preserving a legal forum for regulated entities to raise these critical defenses. This ruling reinforces the judiciary's supervisory role over agency action, ensuring that agencies create a reviewable record and articulate the basis for their decisions.
