When Maybe Is Good Enough: The Title V Citizen Petition

• Date: 01 February 2011

2-2011 NEWS & ANALYSIS 41 ELR 10091

C O M M E N T

When Maybe Is Good Enough:

The Title V Citizen Petition

by John C. Evans and Donald R. van der Vaart

Donald R. van der Vaart, P.E., Ph.D., J.D., is chief of the Permits Section for the North Carolina Division of Air

Quality. He has worked as an engineer in industry, academic, and government capacities. John C. Evans, J.D.,

is a supervisor in the Permits Section of the North Carolina Division of Air Quality. He worked in the eld of

environmental regulation for government, industry, and consulting. He also served in the North Carolina Attorney

General’s oce and litigated federal air quality regulations, including the EPA NOx SIP Call and the CAIR rule.

Much has been written on the Title V program

since its inception in the 1990 Amendments to

the Clean Air Act (CA A),1 and even more if its

ancestor, the national pollutant discha rge elimination sys-

tem (NPDES) permit program in the Clean Water Act,2

is considered. Among the many improvements the Title V

program was expected to bring was the increased participa-

tion of the public to the permitting process.3 Virtually a ll

new a nd modied permits are subjected to public notice

to give the interested public an opportunity for comment.

e culmination of the comment period is an additional

45-day review granted to the U.S. Environmental Protec-

tion Agency (EPA), during which the Agency reviews the

state’s proposed permit, with its statement of basis, along-

side the comments the state received from the public. e

U.S. Congress granted EPA far more oversight authority

over the Title V operating permit program as compared

with the then-to-fore state implementation plan (SIP) con-

structed in the 1970 C AA. A mong its powers, EPA can

object to an individual proposed permit and force the

state, under threat of veto, to a mend the permit to satisf y

EPA’s view of the CA A. However, Congress also provided

oversight of EPA by the public through t he public peti-

tion process. EPA is required to respond to the public peti-

tioner, and EPA’s response is reviewable in the U.S. courts

of appeal. Unfortunately, the Title V objection process and

the citizen petition have become increasingly used or pos-

sibly abused by environmental activists, both inside and

outside EPA.4 As a result, instead of the Title V permit

1. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.

2. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.

3.  Donald R. van der Vaart & John C. Evans,  

, 21 V. E. L.J. 5 (2002).

4. Upon being appointed EPA Administrator, Lisa Jackson stated: “[W]hat I

hope that we see at the end of this are activists who look like me—activ-

ists who represent the future demographic of our country because that’s

who’s going to be the EPA in the future.” Elaine Quijano, 

process providing an orderly administration of CAA obli-

gations, the process has become a politically infused and

often litigated mineeld.

Since the Barack Obama Administration appointed Lisa

Jackson to lead EPA, established national environmental

organizations have been successful in using the Title V

public petition process to stop the issuance, or require revi-

sion, of many Title V operating permits. e Jackson-led

Agency has found in favor of the environmental petition-

ers and ag ainst the state agencies in almost every decision

made to date by this Agency.5 While it is not particularly

surprising, given the Administrator’s pledge that “EPA is

back on the job,” what may be surprising to state and indus-

try stakeholders is the basis for granting these petitions.6

When developed, the EPA objection provision charged the

Agency to make its determinations objectively, and to use

the veto authority judiciously.7 Instead, members of t he

established national environmentalist organizations, some

of whom are now within the Agency, have found the Title

V objection process to be a useful tool to either delay or

strengthen permits.8 Environmental groups have long used

the judicial process to achieve what a deliberative legisla-

 CNN.com, Apr. 21, 2009, http://www.cnn.

com/2009/POLITICS/04/21/lisa.jackson/index.html (last visited Jan. 6,

2011).

5. Approximately 18 of 19 decisions made under the Obama Administrator

decisions have favored the Petitioners.  U.S. EPA, Region 7 Air Program,

Title V Petition Database, http://www.epa.gov/Region7/air/title5/petition-

db/petitiondb2010.htm.

6. Lisa Jackson declared: “e EPA is back on the job.” National Public Radio,

Top Ocial: “e EPA Is Back on the Job,” http://www.npr.org/templates/

story/story.php?storyId=113884818 (last visited Jan. 6, 2011).

7. “While EPA has an important role of providing guidance and oversight, the

agency should not unduly interfere with the states’ implementation of the

permit program.” A L H   C A A A-

  1990, 1044 (1993).

8. e fast relationship between environmental nongovernmental organiza-

tions (NGOs) and the current EPA was recently evidenced in the Freedom

of Information Act disclosure of e-mails between the Sierra Club and EPA.

In a February 2009 e-mail, David Bookbinder, Chief Climate Counsel for

the Sierra Club, provided a list of pending PSD permits and requested a

meeting with EPA to discuss how the Sierra Club should object to these

projects. In a response e-mail, written less than three hours after the ques-

tion was posed, Robert Sussman, Senior Policy Counsel to the EPA Ad-

Authors’ Note: e views expressed by both authors are solely those of

the authors and do not represent the views or positions of the North

Carolina Division of Air Quality.

Copyright © 2011 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.