The Demonstration Required to Compel the Administrator to Object Under Title V of the Clean Air Act

This Note analyzes the emerging split among the federal circuit courts regarding the type of demonstration a petitioner must make under § 7661d(b)(2) of the Clean Air Act in order to compel the EPA Administrator to exercise his or her nondiscretionary duty to object to the issuance of a Title V permit. Whereas some courts require only a showing based on facts and data that a proposed operating permit does not contain all of the arguably applicable Clean Air Act provisions in order to overturn the EPA Administrator’s decision not to object to the proposed permit, other courts have heightened the required demonstration to essentially require an adjudicated violation before com-pelling the Administrator to object to the issuance of a Title V permit. The author argues that the latter interpretation of “demonstrates” as used in § 7661d(b)(2) strains the statutory language and places too heavy a burden on petitioners, to the detriment of human and ecosystem health. The author suggests EPA rulemaking as a solution to clarify the type of demonstration required under § 7661d(b)(2). The author concludes that a flexible standard that allows a petitioner to compel the Administrator to object when the facts and data suggest that arguably applicable Clean Air Act provisions are not included in the proposed Title V permit should be implemented to end the discord in the federal circuit courts.

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