Posted on July 11, 2017 by Seth Jaffe
Last week, the D.C. Circuit Court of Appeals handed environmentalists at least a temporary win in what I think was the first case to reach judicial decision in Scott Pruitt’s great environmental roll-back tour of 2017. The Court rejected EPA’s effort to stay the effective date of the New Source Performance Standards for fugitive emissions from oil and natural gas operations, pending EPA’s reconsideration of certain aspects of the Obama-era rule.
Notwithstanding Judge Brown’s dissent, EPA’s position on the merits seemed barely credible. I understand the argument that the stay was not final agency action and thus not judiciable. It just doesn’t seem compelling to me. If EPA had amended to rule to extend the compliance deadlines, that clearly would have been subject to judicial review. Why should the answer be different because EPA styles its action as a stay, rather than a revision to the regulations? The impact is exactly the same.
As to EPA’s position that the four issues which it was reconsidering could not have been addressed during the original rulemaking by the industry groups now seeking reconsideration, EPA’s position was almost embarrassing. As the Court repeatedly demonstrated, not only could the industry groups have addressed the issues during the original rulemaking, but they actually did so. Moreover, EPA did consider those comments and, at least in parts, adopted them in the final rule. My favorite example is the court’s discussion regarding the criteria for exemption for well-site pneumatic pumps. As the Court noted:
[The American Petroleum Institute] … proposed precisely the technical infeasibility language EPA adopted in the final rule, suggested that an engineer certify technical infeasibility, and justified its proposed exemption based on a lengthy description of why existing sites were not designed to “handle” EPA’s proposal.
The record thus belies EPA’s claim that no industry group had an opportunity to comment on the “scope and parameters” of the pneumatic pump exemption.
The real question at this point is whether this decision is any kind of harbinger. Practitioners know that the record of the Bush EPA in rolling back Clinton rules was shockingly poor, given Chevron deference. Are we going to see the same again? The Court threw EPA what could prove to be a rather large fig leaf by noting that the decision does not prevent EPA from reconsidering the methane rule. The Court also quoted FCC v. Fox Television Stations – the same case on which EPA is relying in its rollback of the WOTUS rule:
[EPA] is free to [reconsider the rule] 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.”
This is where the battles are going to be fought over the next several years.