EPA Administrator Scott Pruitt's effort to roll back Obama-era regulations hit a legal roadblock Monday when a federal appeals court ruled the agency illegally delayed a rule to limit methane pollution.
Last month, several environmental groups filed an emergency request to vacate the EPA's decision to partially halt implementation the methane rule for 90 days while it reconsiders portions of it. The agency, along with intervenors from the oil and gas industry, argued that under a provision in the Clean Air Act, the EPA has the authority to reconsider rules and that the court did not have jurisdiction to review its decision. The court disagreed, ruling 2-1 that the EPA's administrative stay counts as a final action and is therefore subject to review.
"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," wrote Judges David Tatel and Robert Wilkins in the per curiam decision.
The EPA had also argued that even if the decision was subject to review, the delay was lawful because certain stakeholders had not been able to comment on the rule during the rulemaking process under Obama. The Clean Air Act allows for reconsideration of rules in that circumstance. But the court said industry groups "had ample opportunity" to comment on all the issues on which the EPA focused its decision to reconsider.
"This is a big win for public health and a wake-up call for this administration," Tim Ballo, an attorney at Earthjustice who represented some of the environmental groups, said in a statement. "While Scott Pruitt and Donald Trump continue to bend over backwards to do the bidding of Big Oil, Earthjustice and our clients and partners will use every tool at our disposal to hold them fully accountable for their actions."
Judge Janice Rogers Brown dissented from the opinion. She wrote that the stay could not constitute a final agency action because "hitting the pause button is the antithesis of ending the matter."
"That Petitioners are anxious to see their victory implemented and impatient with delay does not make EPA's action final," Brown wrote. "It may be annoying, disappointing, ill-advised, even unlawful, but that does not transform a stay to facilitate reconsideration into 'final agency action.'"
An EPA representative told the National Law Journal that the agency is "reviewing the opinion and examining our options." The Justice Department declined to comment.
The D.C. Circuit handles the bulk of agency review cases, so as the Trump administration rolls back Obama-era regulations, the court is poised to handle much of the resulting litigation. And while the 90-day stay is no more, the EPA is still considering a two-year delay on the entire rule. That proposal is proceeding via a separate rulemaking process, and the court noted that its decision Monday had no effect on that proposal, which is all but certain to face pushback from industry groups once finalized.