The Fifth Circuit Court of Appeals has dismissed a power plant’s suit seeking review of a Notice of Violation (NOV) issued to a coal plant. In the case, Luminant Generation Co., L.L.C. v. U.S., Luminant requested that the Court reject the NOV due to the U.S. Environmental Protection Agency’s (EPA) failure to provide adequate notice to the State of Texas, citing the U.S. Supreme Court’s 2012 decision in Sackett v. E.P.A. rejecting the U.S. Environmental Protection Agency’s longstanding position that a Clean Water Act (CWA) order is not reviewable.

The Fifth Circuit held that a Notice of Violation is not final agency action, distinguishing an NOV from the compliance order in Sackett.  The Court distinguished an NOV, which did not require a particular action by Luminant, from the order in Sackett which required compliance with provisions of the Clean Water Act. Because the NOV did not determine Luminant’s rights or obligations, and no legal consequences flow from the issuance of the NOV, the Court found the NOV advisory, preliminary, and non-binding, citing decisions from several other federal judicial circuits. Such preliminary government actions have long been immune to review under the doctrine of ‘final agency action.’

Under the CAA and most federal environmental laws, NOV’s are a prerequisite to a subsequent order or judicial action-forcing compliance.  Following the Supreme Court’s Sackett decision, these subsequent orders are likely reviewable in most and perhaps all instances. This is due to the fact that EPA orders typically require restoration of property, subject the recipient to penalties for non-compliance, and require the recipient to provide information, access, cooperation, or other actions, as was the case in Sackett.

In rejecting review of a preliminary EPA action which did not carry restoration, consequences, or other action by the recipient, the Luminant decision is consistent with numerous post-Sackett decisions.  See Belle Co., LLC v. U.S. Army Corps of Engineers, CIV.A. 12-247-BAJ, 2013 WL 773730 (M.D. La. Feb. 28, 2013)(rejecting petition for review of U.S. Army Corps of Engineers (“Corps”) approved jurisdictional determination for CWA Section 404 permitting); Hawkes Co., Inc. v. U.S. Army Corps of Engineers, 963 F. Supp. 2d 868, 870 (D. Minn. 2013)(same); National Association of Home Builders v. U.S. E.P.A., 956 F. Supp. 2d 198, 201 (D.D.C. 2013)(rejecting petition for review of determination by EPA and the Corps that portions of the Santa Cruz River are traditional navigable waters under the CWA). Generally, if the EPA (or state) action requires a recipient to perform some action, or otherwise has legal consequences, the government’s action will be reviewable in accordance with Sackett. Where the government action is a preliminary notification, such as an NOV, it will not be reviewable under the analysis in Luminant.

For more information regarding the Clean Air Act or other environmental concerns, contact your Environmental and Sustainability Counsel at Smith, Gambrell & Russell.