Dominion Energy Brayton Point v. Johnson

United States Court of Appeals for the First Circuit · Administrative Law

Administrative LawChevronBrand XClean Water ActNPDESpublic hearingevidentiary hearingnon-discretionary duty

Facts

Dominion owns a Massachusetts power station whose water withdrawals and discharges are regulated under the Clean Water Act through NPDES permits and thermal variance procedures. After Dominion sought renewal of its permit and thermal variance authorization, EPA issued a proposed final permit rejecting the requested thermal variance. Dominion petitioned the Environmental Appeals Board for review and requested an evidentiary hearing, but the Board declined to convene one. Dominion then brought a CWA section 505(a)(2) citizen suit, claiming EPA had a non-discretionary duty to provide such a hearing.

Issue

Whether EPA had a non-discretionary duty under the Clean Water Act to provide Dominion a formal evidentiary hearing on its permit application, so that Dominion could invoke district court jurisdiction under CWA section 505(a)(2). More specifically, the question was whether Seacoast still controlled after Chevron and EPA's later regulation eliminating evidentiary hearings in the NPDES permit process.

Rule

A prior judicial interpretation of a statute defeats a later contrary agency interpretation entitled to Chevron deference only if the earlier decision held that its reading followed from the statute's unambiguous terms. When the earlier precedent instead chose the best reading of an ambiguous statute, a later reasonable agency interpretation controls; thus, under CWA section 505(a)(2), no citizen-suit jurisdiction exists absent a genuinely non-discretionary duty.

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Lakefront Metals operates a wastewater treatment facility in Toledo, Ohio and seeks renewal of a federal discharge permit. Years earlier, the Sixth Circuit had read the governing statute's requirement of an "opportunity for public hearing" to require a trial-type evidentiary hearing, but that opinion relied on a presumption drawn from administrative-law history because the statute itself was unclear. Afterward, the agency adopted a regulation allowing only informal written and oral submissions in permit review.

If Lakefront brings a citizen suit alleging the agency violated a non-discretionary duty by refusing an evidentiary hearing, how should the court rule?

Explanation. A prior judicial interpretation defeats a later contrary agency interpretation entitled to Chevron deference only if the earlier case held that its reading followed from the statute's unambiguous terms. If the earlier case merely selected the best reading of ambiguous text, Brand X permits a later reasonable agency interpretation to prevail. Without a genuinely non-discretionary duty, a citizen suit cannot proceed under the relevant jurisdictional provision. (Derived from Dominion Energy Brayton Point v. Johnson (n.d.).)