## Facts

- The Tennessee Valley Authority (TVA), a federally owned corporation, operated multiple coal-fired electric generating plants.
- The Environmental Protection Agency (EPA) determined that TVA undertook “rehabilitation projects” at nine plants that qualified as Clean Air Act (CAA) “modifications” under New Source Review and therefore required permits.
- EPA issued an administrative compliance order (ACO) directing TVA to implement pollution-control and permitting measures.
- TVA disputed EPA’s legal and factual basis and refused to comply.
- EPA used an internal “reconsideration” procedure before the Environmental Appeals Board (EAB), which upheld EPA’s position and issued a final order on reconsideration.
- TVA petitioned the Eleventh Circuit to set aside the EAB order under the APA as unlawful and arbitrary and capricious, invoking CAA judicial review under 42 U.S.C. § 7607(b)(1).

## Issues

1. Whether an EPA administrative compliance order, upheld on EAB reconsideration, constitutes “final agency action” reviewable in the court of appeals under 42 U.S.C. § 7607(b)(1) and the APA.
2. Whether construing the CAA to impose severe civil and criminal penalties for mere noncompliance with an ACO, without prior judicial adjudication of the underlying violation, would violate due process.

## Decision

- The Eleventh Circuit dismissed the petition for lack of jurisdiction.
- The court held the ACO (and the EAB’s reconsideration order upholding it) did not constitute “final agency action.”
- To avoid serious due process problems, the court construed the CAA enforcement scheme to require EPA to prove an underlying CAA violation in federal district court before penalties may be imposed.
- Under that construction, an ACO lacks independent legal force and does not itself alter legal rights or obligations; regulated parties may refuse to comply without incurring penalties solely for that refusal.

## Legal Principles

- An agency action is final only if it marks the consummation of agency decisionmaking and has legal consequences or determines rights or obligations.
- An administrative compliance order that lacks the “status of law” (i.e., cannot itself serve as the basis for civil or criminal punishment) is legally inconsequential and not final agency action.
- Due process concerns arise if a unilateral agency order—issued without prior Article III adjudication—could trigger severe penalties simply for noncompliance.
- The CAA is construed to require judicial enforcement proceedings to establish the underlying violation before penalties attach; internal agency reconsideration does not substitute for judicial adjudication.

## Conclusion

The Eleventh Circuit held it lacked jurisdiction to review EPA’s CAA administrative compliance order because, to avoid unconstitutional penalty exposure without prior judicial process, the order was construed as nonbinding and therefore not “final agency action”; enforcement must proceed through a district-court action proving the underlying violation.


Tenn. Valley Auth. v. Whitman, 336 F.3d 1236 (11th Cir. 2003)