Another EPA Loss in Court

Today, in Air Alliance Houston v. EPA, the U.S. Court of Appeals for the D.C. Circuit rejected the Trump Administration’s attempt to delay the effective date of an Obama Administration rule. Specifically, the court held that the EPA’s effort was both contrary to its statutory authority and arbitrary and capricious. This is the second time this week a federal court has rejected an Trump EPA effort to delay an Obama EPA rule.

At issue in the Air Alliance Houston was the so-called “Chemical Disaster Rule,” a set of revisions to regulations designed to help prevent accidental chemical releases from chemical plants by, among other things, requiring the development of risk management plans, investigations of accidental spills and releases, and coordination with local first responders.

The rule was promulgated in January 2017, during the waning days of the Obama Administration, with an effective date of March 14. Industry groups sought reconsideration of the rule, which is provided for under the Clean Air Act. The catch is that the CAA only allows delaying the implementation of a rule pending reconsideration for three months. The Trump Administration, however, sought to delay the effective date of the regulation until February 2019. This, the D.C. Circuit concluded, it could not do.

The court’s per curiam opinion explained:

Section 7607(d)(7)(B) provides that reconsideration of a final rule pursuant to that section “shall not postpone the effectiveness of the rule” and that the “effectiveness of the rule may be stayed during such reconsideration . . . for a period not to exceed three months.” It is beyond dispute that EPA relied upon Section 7607(d)(7)(B) when delaying the Chemical Disaster Rule in response to reconsideration petitions. . . .Throughout the Delay Rule, EPA repeatedly justified delay of effective dates on the basis that it needs more time to reconsider the Chemical Disaster Rule than was provided under Section 7607(d)(7)(B). . . . The only justification offered in EPA’s short summary of the Delay Rule is that it “allows the Agency time to consider petitions for reconsideration of the [Chemical Disaster Rule] and take further regulatory action, as appropriate.” . . . But regardless whether EPA “believe[s] that three months [is] insufficient to complete the necessary steps in the reconsideration process,” . . . that is not EPA’s call. Congress saw fit to place a three-month statutory limit on “such reconsideration,” . . . and this court “must give effect to the unambiguously expressed intent of Congress,” . . . . Because the Delay Rule arose from reconsideration petitions under Section 7607(d)(7)(B) and EPA’s reliance on its authority to delay a rule for reconsideration under that provision, that statute’s limitations apply.

The EPA sought to defend its actions by relying upon other grants of general rulemaking authority, but the court wasn’t buying it:

EPA cannot escape Congress’s clear intent to specifically limit the agency’s authority under Section 7607(d)(7)(B) by grasping at its separate, more general authority under Section 7412(r)(7). That would almost always allow EPA to avoid the restrictions of Section 7607(d)(7)(B) by simply insisting it was invoking Section 7412(r)(7), even when it is indisputably responding to a Section 7607(d)(7)(B) petition and reconsidering a rule under that specific provision. Such an unreasonable interpretation “would deprive [the more specific authority] of virtually all effect.” . . .