May 19, 2019

Tenth Circuit: Untimely Filed Petition Not Reviewable Due to Lack of Jurisdiction

The Tenth Circuit Court of Appeals issued its opinion in State of Utah v. Environmental Protection Agency on Tuesday, May 6, 2014.

Under the federal Clean Air Act, states are required to adopt programs that will reduce visibility-affecting air pollution emissions. The State of Utah submitted such a plan to the Environmental Protection Agency, but the agency partially rejected the state’s plan. The state and one of the affected companies, PacifiCorp, filed petitions for review. The parties all agreed that the Tenth Circuit had jurisdiction, but the Tenth Circuit disagreed.

The Clean Air Act requires an aggrieved party to file a petition to review within 60 days of the date on which the EPA’s action appears on the Federal Register. The agency’s rejection of the Utah plan appeared in the Federal Register on December 14, 2012, and Utah and PacifiCorp waited until March 21 and 22, 2013, to file petitions for review. The parties submitted four arguments to advance their cause that the petition was timely: (1) The 60-day deadline does not apply to grounds arising after the 60th day; (2) the EPA changed the promulgation date when it identified the deadline as March 23, 2013; (3) Filing after the 60th day is allowed under the “reopener doctrine”; and (4) denial of jurisdiction would be inequitable. The Tenth Circuit rejected each argument in turn.

As to the first argument, the Tenth Circuit noted that the exception does not apply because the “grounds” for the petitions lie in the EPA action published on December 14, 2012. For the second point, the EPA had neglected to include a statement regarding the parties’ 60-day deadline in its original rejection, so it stated on January 22, 2013, that aggrieved parties would have until March 25, 2013, to file a petition for review. The parties relied on this statement in error; the plain language of the EPA regulations required the EPA to explicitly change the promulgation date in the Federal Register, which it did not do. The Tenth Circuit declined to adopt the “reopener doctrine” and noted that the doctrine was inapplicable anyway. As to the fourth argument, the Tenth Circuit agreed that an inequity was created by the jurisdictional bar, but did not expand its jurisdiction to include hardships despite the inequity.

The petitions were dismissed for lack of jurisdiction.

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