Lawyers' Committee Files Amicus Brief in Support of Citizen Suit Provision that Allows Individuals and Communities to Seek Judicial Review of Clean Air Act Permits

In December 1994, the United States Environmental Protection Agency ("EPA") denied Virginia's proposed program for issuing air pollution permits. Virginia had proposed a Clean Air Act state implementation plan or SIP that required participants in public comment process have a "pecuniary and substantial interest" in the permit in order to have standing to obtain judicial review in state court of that permit. This requirement was more stringent than standing principles provided for in the United States Constitution.

Virginia argued that the citizen suit provision improperly commandeered the legislative processes of the states in violation of the 10th Amendment. Virginia appealed the EPA disapproval of the SIP. The Lawyers' Committee filed a brief on behalf of intervenor environmental and public health groups supporting EPA's disapproval.

The Fourth Circuit found that the 10th Amendment was not implicated by EPA's interpretation and found that because Virginia's permit program did not provide the minimum judicial review rights required by the Clean Air Act, the EPA was not arbitrary and capricious. (Commonwealth v. Browner, 80 F.3d 869 (4th Cir. 1996)). As the court stated, the Clean Air Act's requirement of broad availability of judicial review is necessary to ensure that the required public comment period serves its proper purpose.

"We weighed in on this case because retaining the ability to bring a citizen suit to challenge a permit is a very important right for all communities. The comment of an ordinary citizen carries more weight if officials know that the citizen has the power to seek judicial review of an administrative decision that is harming him," explained Tom Henderson, Director of Litigation for the Lawyers' Committee for Civil Rights Under Law.

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