U.S. Court of Appeals to Hear Challenges to EPA Vessel General Permit
Washington, D.C. - On Monday, May 9, the U.S. Court of Appeals for the D.C. Circuit will hear argument on the industry challenge to portions of the Vessel General Permit -- the Environmental Protection Agency’s first effort to regulate incidental discharges from the normal operations of vessels.
EPA issued the permit in 2008 after the U.S. Court of Appeals for the Ninth Circuit found that the 30-year-old exemption for these discharges was invalid and that these discharges had to be regulated. The permit is a Nationwide Permit and represents the first time the agency has sought to regulate mobile sources under the Clean Water Act.
After proposing federal standards and taking comment, EPA obtained additional requirements from states under section 401 of the Clean Water Act and issued a final permit on Dec. 18 that included more than 100 new requirements based on state submissions. These new requirements, however, never were offered for comment as to whether they were conflicting or contradictory for vessels moving through waters of several states.
The question now before the court is whether the EPA is required to take comment on provisions of the permit and whether the agency has any authority to address any conflicting or contradictory state conditions that appear to place regulated entities in the position of violating permit provisions applicable in the waters of one state in order to comply with the provisions imposed in another state.
EPA takes the position that it was not required to take any comment on these conditions as the agency is required to accept them and has no authority to consider whether they impose unconstitutional burdens on the regulated community. The agency’s brief states that Congress must change the law to address this concern.
The petitioners -- Lake Carriers Association, American Waterways Operators, and Canadian Shippers Association -- argue that the agency has the obligation to consider comments and has some power to address them and that its failure to take comment renders the portion of the permit imposing these new state conditions invalid.