US EPA’s Efforts to Delay Implementation of Obama Environmental Regulations May Have Hit a Speed Bump in the D.C. Circuit
Along with Congress’ efforts to roll-back Obama-administration environmental rules and regulations through use of the Congressional Review Act, US EPA also has begun to issue stays seeking to delay the effective dates of other Obama-administration environmental regulations. For example, on June 9, 2017, US EPA stayed the effective date of Clean Air Act (“CAA”) regulations that imposed substantive new requirements on facilities subject to US EPA’s Risk Management Program. Similarly, on June 16, 2017, US EPA stayed the effective date of regulations that imposed new requirements on emissions from regulated sources in the oil and natural gas sector. Various environmental groups filed lawsuits challenging US EPA’s decision to stay both sets of regulations, arguing that the requirements necessary to stay the stay the regulations pursuant to Section 307(d)(7)(B) of the CAA were not met.
On July 3, 2017, the US Court of Appeals for the D.C. Circuit agreed with the challenges, noting that U.S. EPA could only stay a regulation pursuant to CAA Section 307(d)(7)(B) if the following specific requirements of the rule are met: (1) it was impracticable to raise the objections now being raised during the notice and comment period and (2) the objection is of central relevance to the outcome of the rule. See Clean Air Act Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017) (No. 17-1145). In the case of US EPA’s stay of the regulations affecting the oil and gas sector, the Court found that both requirements were not met, noting that the “administrative record thus makes clear that the industry groups had ample opportunity to comment on all four issues for which EPA granted reconsideration, and indeed, that in several instances the agency incorporated those comments directly into the final rule.”
Although the Court has to yet to issue a ruling in the ongoing challenge to US EPA’s decision to stay the effective date of the revised Risk Management Program regulations, the rationale applied by the Court in the Clean Air Act Council decision is likely to apply with equal force to that challenge. DOJ has sought to distinguish its stay of the Risk Management Program rules by arguing that US EPA’s decision to issue the stay went through notice and comment after being published in the Federal Register but it is not clear whether that distinction will have any effect on the Court’s ultimate decision. The important takeaway from these cases is that any effort by the current administration to roll back or relax environmental regulations is going to be challenged in court and the regulated community needs to be prepared to comply with these environmental rules or regulations even if US EPA has stayed the effective date of these regulations.