July 27, 2020

Alternative Dispute Resolution in EPA and State Permit Appeals

by Lauran M. Sturm and Elizabeth A. Hurst

Alternative dispute resolution (ADR) has for many years played an important role in resolving disputes associated with environmental permits, including both permits issued by the Environmental Protection Agency (EPA) and permits issued by state agencies under the authority delegated to them by EPA. In an effort to streamline the processing and finality of permits under its review, the EPA has proposed several changes to the Environmental Appeals Board’s (EAB) permit review process. EPA’s proposed rule, published in the Federal Register on December 3, 2019, would revise its approach to ADR by imposing a time-limited ADR process as a requirement for judicial review and thereby transform EAB’s current ADR practice from an “opt-in” to an “opt-out” system. Envtl. Prot. Agency, Modernizing the Administrative Exhaustion Requirement for Permitting Decisions and Streamlining Procedures for Permit Appeals, 84 Fed. Reg. 66,084 (Dec. 3, 2019).

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