Notice & Comment

D.C. Circuit Review – Reviewed: Breaking News about Methane Gas

The D.C. Circuit does not normally issue opinions on Mondays, but it did this week — and the opinion is a noteworthy one.

In Clean Air Council v. Pruitt, a per curiam panel (Judges Tatel and Wilkins) held that EPA lacks authority under the Clean Air Act to stay implementation of a regulation governing methane emissions. This decision was issued on an emergency basis.

The rule at issue became final at the tail end of the Obama Administration. Afterwards, various industry groups sought reconsideration. The EPA, under the Trump Administration, agreed that reconsideration is warranted. It further granted a 90-day stay. (EPA later published a notice of proposed rulemaking that would extend the stay for two years; that NPRM is not at issue.)

The majority holds that reconsideration is not final agency action, but the stay is. “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.” The majority then goes on to say that the stay was unlawful because the statute only authorizes such a stay for mandatory reconsideration, not discretionary reconsideration. One such mandatory basis occurs if it was “impracticable” to raise the argument during the initial proceedings. The majority — diving deep into the facts — rejected that argument.

Judge Brown dissented. The agency’s reconsideration certainly is not final agency action, and the statute says that “[t]he effectiveness of the rule may be stayed during such reconsideration, however, by the Administrator or the court for a period not to exceed three months.” A “stay — designed so EPA can devote resources to reconsidering the rule rather than enforcing it, and so industry can avoid implementing changes that reconsideration may later obviate — is subsidiary to the reconsideration itself.” “It may be annoying, disappointing, ill-advised, even unlawful, but that does not transform a stay to facilitate reconsideration into ‘final agency action.'”

One interesting point: at least twice the majority invoked Chenery I, i.e., the idea that EPA didn’t raise certain arguments as grounds for its decision during the administrative process. Perhaps EPA will turn around and issue another stay, this time explicitly raising the arguments during the administrative process that it presented to the Court. If so, no doubt there will be another round of litigation.* In any event, it is safe to assume that a lot of lawyers will read this case carefully over the next few days.

That’s the life of a lawyer — the law does not stop for holidays.

* I have no idea how likely that it is.

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