Dominion Energy Bray v. Johnson, No. 05-2231 involves the question of whether the EPA must “formal evidentiary hearing after issuing a proposed final National Pollution Discharge Elimination System (NPDES) permit.” In Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir. 1978) the First Circuit had interpreted "public hearing" (as used in sections 402(a) and 316(a) of the [Clean Water Act]) to mean "evidentiary hearing" — in other words, a hearing that comports with the APA's requirements for a formal adjudication. But, here the court concludes that Chevron overrules Seacoast. Applying Chevron (and Citizens Awareness Network, Inc. v. United States, 391 F.3d 338 (1st Cir. 2004) (our coverage here)), the court concludes that, in fact, holding an evidentiary hearing is discretionary. The court also notes that National Cable & Telecommunications Ass'n v. Brand X Internet Services, 125 S. Ct. 2688 (2005) requires Circuit courts to re-examine their pre-Chevron precedents when reviewing administrative decisions. For some reason the District Court dismissed for lack of jurisdiction. But the First doesn’t seem to examine this jurisdictional issue. Specifically, the court describes the lower court as doing thus:
In a bench decision, it concluded that it was without subject matter jurisdiction because the suit, though billed as a citizen's suit, constituted a direct challenge to the EPA's hearing rule and, thus, came within the exclusive jurisdiction of the circuit court under 33 U.S.C. § 1369(b)(1)(E).
And avoids the issue by saying this:
The appellate court is not wedded to the lower court's reasoning, but may affirm the order of dismissal on any ground fairly presented by the record.