The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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." . . .
The EPA's efforts to get around these constraints, the court concluded, made "a mockery of the statute."
By delaying the effective date, EPA has delayed compliance, reduced or eliminated the lead-up time to achieve the compliance that EPA had earlier found necessary, and thus has delayed life-saving protections. EPA may not employ delay tactics to effectively repeal a final rule while sidestepping the statutorily mandated process for revising or repealing that rule on the merits. EPA states that it "does not wish to cause confusion among the regulated community and local responders by requiring these parties to prepare to comply with, or in some cases, immediately comply with, rule provisions that might be changed during the subsequent reconsideration." . . . . But this "confusion" stems solely from the confusion EPA has caused by the almost two-years' reconsideration it desires in order to decide what it wants to do, not compliance concerns relevant to regulated facilities' implementation of the Chemical Disaster Rule. That is not a basis for delaying protections. That the pre-existing rule remains in effect during the delay period does not show the Delay Rule satisfies Section 7412(r)(7). In promulgating the Chemical Disaster Rule, EPA had found, and the record shows, that there was a need for improvements to protect worker and community safety, and to reduce facilities, injuries, life disruption, and other harm.
Were that not enough, the court also concluded that the EPA's actions were arbitrary and capricious because it failed to provide adequate explanations for the agency's changed views on the rule and the proper implementation schedule.
Air Alliance Houston was a per curiam decision for Judges Rogers and Wilkins. Judge Kavanaugh had initially been part of the panel, but is listed as not participating (as is common for judges to do when a nomination to another court is pending).
This decision is merely the latest legal setback for the Trump EPA. It helps confirm that the EPA, under Scott Pruitt, was more interested in making a show of reducing regulatory burdens than actually doing the hard work to revise and reform existing regulatory programs. A big question going forward will be whether Acting EPA Administrator Andrew Wheeler forces the agency to adopt a more cautious and deliberate approach, even if that means being more selective in which regulatory measures to target.
In addition, the EPA's legal troubles may be compounded by a lack of support from elsewhere in the Administration. Among other things, the Administration was slow to staff up the EPA and the top environmental law position within the government remains vacant. Jeff Clark's nomination to be Assistant Attorney General for the Environment and Natural Resources Division at the Department of Justice has languished for more than a year. Not only is the EPA taking hard-to-defend actions, it's doing so without the benefit of a full complement of defenders (defenders who, I might add, could help the agency make stronger arguments in support of its desired aims). If this doesn't change, more legal setbacks for the Trump deregulatory agenda are sure to follow.