EPA seeks to overturn US Wind’s air permit in ongoing appeals board fight with Maryland

The US Environmental Protection Agency is formally contesting Maryland's claim that an air permit granted to offshore wind developer US Wind is only contestable at the state level, and not before a federal appeals board.

EPA's Region 3 office filed the comments in an Aug. 25 response brief with EPA's Environmental Appeals Board (EAB), which opened a hearing docket in response to a July 7 petition by Ocean City, Maryland.

The city wants the board to remand the permit to the Maryland environmental regulator and rewrite it to include a federal appeals process, which the state and US Wind say is not necessary.

The city is also fighting the 2.2-GW US Wind project in federal court, arguing that it would harm Maryland's coastal tourism industry. The Interior Department's Bureau of Ocean Energy Management is expected to act no later than Sept. 12 to cancel the US Wind project's construction and operations permit, according to an Aug. 25 court filing with the US District Court in Maryland.

Ocean City plaintiffs filed a separate response brief on Aug. 25 with the board, rebutting the argument of the Maryland Department of the Environment (MDE) that the air permit it granted US Wind in June is not appealable at the federal level.

Region 3 told the MDE in July that the regulator should rewrite the US Wind permit, stating it identified the "incorrect appeals process in the Notice of Final Determination and provided conflicting information about the appeals process for this permit on its website."

MDE declined to rewrite the permit, saying the state-based appeals approach was justified by the Clean Air Act.

The Ocean City petitioners support the Region 3 office's Aug. 25 assertion that no court or review body in Maryland has jurisdiction to review a permit issued by the state, even if the authority is granted to it by the Clean Air Act.

"The EAB is the proper forum for administrative review of this federal action as a prerequisite to judicial review, which is available only in a United States Court of Appeals," the Region 3 office argued in its Aug. 25 brief.

The EPA office said the Outer Continental Shelf Lands Act gives the federal government "complete jurisdiction, control, and power of disposition" over the Outer Continental Shelf, while coastal states have limited jurisdiction over waters and natural resources within 3 nautical miles of the coastline. The US Wind turbines would be about 10 nautical miles offshore Maryland.

Ocean City's argument

Ocean City petitioners, including the mayor, city council and Worcester County commissioners, disputed the MDE's argument that the EPA has no federal authority to review the US Wind permit approval.

They also disputed MDE and US Wind's contention that petitioners may only seek review through "whatever remedy state law provides," such as filing suit in the Maryland Circuit Court. The brief cited a 2004 case in which the Supreme Court held that a delegation of authority to a state "does not mean abnegation."

The Clean Air Act allows certain authorities to be delegated to the states, the petitioners argued, but only the EPA administrator has the authority to issue permits.

"The EPA's regulations provide that the method of initiating an appeal from issuance of a ... permit is to file a petition with the Environmental Appeals Board -- as Ocean City has done," the brief said.

The project cannot operate without the state air permit. US Wind argued in an Aug. 1 response brief to Ocean City's petition that the EPA appeals board must dismiss the petitioners' claims "as non-jurisdictional."

The company said that even if the board had jurisdiction to consider a Maryland permit, "petitioners' claims are procedurally and substantively meritless and should be dismissed on those bases as well."