Environment Legal, Laws, and Regs

The DC Courts Yank Pruitt’s Leash

The EPA operates under very strict guidelines regarding its decisions related to rules and regulations. The guidelines were in play when the EPA released a rule to cut methane emissions in May 2016. These guidelines also worked to save the rule when Pruitt’s EPA moved to arbitrarily halt its enforcement.

In a 2-1 decision in the DC Court of Appeals today the justices rejected the EPA’s assertion that its decision to ‘stay’ the methane rule for two years was not a final agency action, and therefore not subject to court overview.

The imposition of the stay, however, is an entirely different
matter. By staying the methane rule, EPA has not only concluded that section 307(d)(7)(B) requires reconsideration, but it has also suspended the rule’s compliance deadlines. EPA’s stay, in other words, is essentially an order delaying the rule’s effective date, and this court has held that such orders are tantamount to amending or revoking a rule. As we explained in a very similar situation, where an agency granted an application for interim relief from a safety standard while it reconsidered that standard: “In effect, the Administrator has granted a modification of the mandatory safety standard for the entire period of time that the petition is pending. There is no indication that the Secretary intends to reconsider this decision or to vacate the grant of interim relief. Thus, the Secretary’s decision represents the final agency position on this issue, has the status of law, and has an immediate and direct effect on the parties. Therefore, we have no difficulty concluding that the Secretary has issued a final decision . . .

In addition, the justices also found that, contrary to Pruitt’s assertion that industries didn’t have time to file comments during rule formation, not only did the industries have time to comment, their commentary was actually incorporated into the rule.

The administrative record thus makes clear that industry
groups had ample opportunity to comment on all four issues on
which EPA granted reconsideration, and indeed, that in several
instances the agency incorporated those comments directly into
the final rule. Because it was thus not “impracticable” for
industry groups to have raised such objections during the notice
and comment period, CAA section 307(d)(7)(B) did not require
reconsideration and did not authorize the stay. EPA’s decision
to impose a stay, in other words, was “arbitrary, capricious,
[and] . . . in excess of [its] . . . statutory . . . authority.” 42
U.S.C. § 7607(d)(9)(A), (C). We shall therefore grant
Environmental Petitioners’ motion to vacate the stay.

We emphasize, however, that nothing in this opinion in any
way limits EPA’s authority to reconsider the final rule and to
proceed with its June 16 NPRM. Although EPA had no section
307(d)(7)(B) obligation to reconsider the methane rule, it is
free to do so as long as “the new policy is permissible under
the statute . . , there are good reasons for it, and . . . the agency
believes it to be better.” FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 515 (2009)

Not only did the justices rule that the EPA’s stay wasn’t authorized, it also noted that though the EPA could further reconsider the final rule, it can only do so as long as ‘the new policy is permissible under the statute…there are good reasons for it, and…the agency believes it to be better’, with emphasis on ‘believes’.

In other words, the courts have put Pruitt on notice.

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