Shooting Fish In a Barrel: EPA Loses Another Regulatory Delay Case

On Wednesday, EPA lost yet another regulatory delay case.  After the Obama EPA promulgated rules updating requirements concerning certification and use of “restricted use pesticides” in January 2017, the Trump EPA purported to delay the rule’s implementation date five separate times.  According to the Court, EPA provided no notice and opportunity to comment on four of those occasions; once, they provided a four-day (yes, four) comment period.

EPA’s primary defense of the delay was that the plaintiffs did not have standing.  However, the plaintiffs included a farmworkers union, which submitted evidence that their members work with restricted use pesticides and have suffered harm as a result of currently inadequate training and safety measures.  That was more than enough for the Court.

On the merits, the best EPA’s lawyers could do was argue that it had no obligation to provide an opportunity for notice and comment, because the “good cause” exception applied.  You can almost hear the Judge laughing at this argument.

The good cause, exception, however, is extraordinarily narrow and is reserved for situations where delay would do real harm. A new administration’s simple desire to have time to review, and possibly revise or repeal, its predecessor’s regulations falls short of this exacting standard. Cf. Clean Air Council, 862 F.3d at 9 (“Agencies obviously have broad discretion to reconsider a regulation at any time. To do so, however, they must comply with the [APA], including its requirements for notice and comment.”).

This administration just keeps proving my point.  They care more about burnishing their anti-regulation credentials than they do about actually reforming any regulations.

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