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Tuesday, June 08, 2004

On June 4, 2004, the Second Circuit decided Weiler v. Chatham Forest Products, Inc.. That case raised the question of whether a private individual could sue in federal court , under section 304(a)(3) of the Clean Air Act, to challenge the determination of the New York State Department of Environmental Conservation ("DEC") that the defendant may proceed with the construction of a factory without obtaining a particular permit.

The defendant proposed to build an oriented strand board manufacturing factory (whatever that is) in Lisbon, New York. The manufacturing process produces pollutant that may be emitted into the atmosphere. The defendant did not obtain a "major source" permit, which the plaintiffs claim is required. The defendant claims that it does not require such a permit in that the DEC had determined that such a permit was not necessary and issued a different permit (a synthetic minor source permit).

The district court dismissed the case, holding that federal judicial review is prohibited under the circumstances. The Second Circuit reversed and remanded.

The Court noted that citizen suits play an important part in the enforcement of the Clean Air Act. Since Congress did not preclude such suits or even evidence an intention to do so, there would seem to be no reason to preclude such suits. The Court rejected the argument that the existence of other mechanisms of enforcement preclude citizen suits.

The Court remanded that action for further proceedings consistent with its decision. The decision can be found at the Second Circuit website.

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