X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Petitioners filed their petition to review a final rule promulgated by the U.S. Environmental Protection Agency issued under the Clean Water Act. The appeal was taken from Final Rule 70 FR 2832, which deferred the National Pollution Discharge Elimination System permit requirement for certain oil and gas construction sites until March 10, 2005. Since then, EPA has promulgated Final Rule 40 CFR Part 122 on March 9, 2005, which further delays the date by which small oil and gas construction sites must obtain permits until June 12, 2006. HOLDING:Dismissed. In determining whether EPA’s decision is ripe for review, the court weighs both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998). A court, in determining whether a case is ripe for review, evaluates the following factors: 1. whether delayed review would cause hardship to the plaintiffs; 2. whether judicial intervention would inappropriately interfere with further administrative action; and 3. whether the courts would benefit from further factual development of the issues presented. Starting with the second factor, it is clear to the court that a ruling on this case would inappropriately interfere with administrative action. Given that EPA has specifically stated its intent to examine, during the Deferral Period, the issue of “how best to resolve questions posed by outside parties regarding section 402(l)(2) of the Clean Water Act”, any interpretation provided by this court would prematurely cut off EPA’s interpretive process. The court is also unpersuaded that the petitioners have satisfied the first element of the ripeness test. Given that the effective date of the permit requirement for petitioners is a year away, the court is not convinced that petitioners will suffer significant hardship if the court declines to supersede the administrative process. Given the uncertain nature of the oil and gas industry, the petitioners have not demonstrated how a possible change in permitting requirements a year from now could seriously affect an industry that, by its own admission, is unable to plan far in advance. The court does not believe there would be a benefit from further factual development of the issues presented. The court has no sense of what oil and gas construction activities would fall under EPA’s permitting requirements. Without a factual context, such as an attempt to require a permit for the construction of a road leading to a drilling site, a ruling of this court would be little more than a direction to EPA to give effect to the oil and gas exemption. On the other hand, when EPA determines the specific types of construction related to oil and gas development upon which it will impose a permit requirement, petitioners will be in a better position to demonstrate how the regulation violates the provisions of the statute. The court distinguishes this case from Abbott Labs v. Gardner, 387 U.S. 136 (1998). In that case the regulation unambiguously required drug companies to label all prescription drugs in a particular way. This regulation left no doubt of the immediate and severe consequences the drug companies would face in re-labeling all prescription drugs. By contrast, here it is uncertain whether EPA will require permits from petitioners and there is no immediacy to the requirements as they do not go into effect for a year. Given the lack of specificity in the present rule, the court would only be able to address the issue by attempting to hypothesize possible situations in which the rule might apply and determine what is or is not an oil and gas “operation”. The court concludes, therefore, that this case is not ripe for review. OPINION:Davis, J.; Jolly, Davis and Clement, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.