Cleaning Up Jurisdiction: Divining Congressional Intent of Clean Air Act Section 307(b)

40 Pages Posted: 24 Aug 2015

See all articles by Kevin O. Leske

Kevin O. Leske

University of Dayton School of Law

Date Written: August 22, 2015

Abstract

In a span of five days in 2014, panels of the U.S. Courts of Appeals for the Tenth and Seventh Circuits reached opposite conclusions on whether certain limitations on judicial review found in section 307(b)(1) of the Clean Air Act were jurisdictional. Specifically, the courts disagreed as to whether the filing deadline and the venue rules implicated the courts’ subject-matter jurisdiction.

The characterization of a rule as jurisdictional is far from semantic or academic. Whether a requirement is jurisdictional raises significant practical, doctrinal, and constitutional concerns. These issues include fairness, uniformity, and judicial efficiency, as well as fidelity to Article III of the U.S. Constitution and the sovereign immunity doctrine. Accordingly, this Article analyzes whether the filing deadline and the venue rules in section 307(b)(1) of the Clean Air Act are jurisdictional.

First, this Article distinguishes jurisdictional and non-jurisdictional rules. Next, it gives a background of the Clean Air Act and section 307(b), and discusses the various decisions by the U.S. Courts of Appeals to explain the key views on whether the limitations are jurisdictional. Finally, it applies recent Supreme Court guidance to assess whether the filing deadline and the venue rules in section 307(b)(1) are jurisdictional. By examining the text of the provision, its context, and its historical treatment, the Article concludes that: (1) the filing deadline requirement for judicial review is jurisdictional, (2) the venue rule that authorizes only the courts of appeals to entertain petitions is jurisdictional, and (3) the venue rule that directs some petitions for review to the D.C. Circuit and others to the local circuit court is not jurisdictional. These conclusions are buttressed by the goals and policies of the Clean Air Act, canons of statutory construction, bedrock civil procedure and administrative law principles, as well as sovereign immunity and core Article III concerns.

Keywords: environmental law, clean air act, judicial review, jurisdiction

Suggested Citation

Leske, Kevin, Cleaning Up Jurisdiction: Divining Congressional Intent of Clean Air Act Section 307(b) (August 22, 2015). Ecology Law Quarterly, Vol. 42, No. 2, 2015, Available at SSRN: https://ssrn.com/abstract=2649388

Kevin Leske (Contact Author)

University of Dayton School of Law ( email )

300 College Park
Dayton, OH 45469
United States

HOME PAGE: http://www.udayton.edu/directory/law/leske_kevin.php

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