Environmental Appeals Board in the United States

Environmental Appeals Board (EAB) in Environmental Law

An arm of the Environmental Protection Agency (EPA) created specifically to hear administrative appeals. The EAB came into existence on 1 March 1992. The EPA explained its action in the Federal Register notice by stating it would ease the burden of increasing appeals and inspire confidence.

The Environmental Appeals Board consists of three judges appointed by the EPA. They must be “senior career government attorneys.” The EPA is represented by its own attorneys in appeals; the opposing party may represent itself or hire an attorney.

A majority vote is required for an opinion, but two judges constitute a quorum. If a tie results, the final vote is the administrator’s. Usually the board’s opinions are based on the record and written briefs, but the judges may schedule and hear oral arguments. Formal decisions may be issued.

The number of administrative proceedings have increased significantly since statutes have given the EPA power to issue administrative penalty orders. Since it is quicker and more efficient to issue orders than to sue a violator, the EPA often prefers the orders. But as the number of orders multiply, so does the number of people who contest the decisions.

An illustration of the procedure: A permittee violated its water discharge permit three times in a month. The EPA issued a proposed order, assessing a penalty of $75,000. Permittee asked for and had a hearing, but the EPA issued a final order that assessed $50,000. The permittee could at this point file an appeal of the order, and it would be heard by the Environmental Appeals Board.

Before the Environmental Appeals Board existed, appeals were heard by the regional administrator or delegated to judicial officers of the agency. Delegations were permitted, but the delegation was not done in the rules themselves. In the new rules, the EAB was given the power to hear appeals.

Appeals can only be sent to the administrator if the board directs it. The idea is to reduce the burden on the administrator, so the parties cannot go around the board by appealing directly to the administrator.

The EAB can hear appeals of permit decisions as well as enforcement orders. It has power to rule on cases arising from virtually every environmental statute existing today, including Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, and the Toxic Substances Control Act.
Based on “Environment and the Law. A Dictionary”.