Another Day, Another Reversal of an EPA Regulatory Delay

On Friday, the D.C. Circuit Court of Appeals vacated EPA’s “Delay Rule”, which postponed compliance with EPA regulations governing preparation of Risk Management Plans under the Clean Air Act.  The decision comes only one day after another court decision vacating the “Suspension Rule” which postponed the Waters of the United States Rule.

Memo to EPA General Counsel’s office.  If something labeled “Delay Rule” or “Suspension Rule” comes across your desk, you might want to give it a careful read.

This case in particular makes clear the sad irony in this Administration’s approach to statutory implementation.  For years, the GOP has complained that a runaway EPA has ignored the plain text of the statutes it is charged with implementing.  In this case, the statute could not be clearer that, presented with a petition to reconsider a rule under this section of the Clean Air Act, EPA may stay implementation of the rule for up to 90 days.

Here, EPA first stayed the rule for 90 days, but then stayed the rule for 20 months.  In doing so, EPA pointed to its general rulemaking authority under the Act, ignoring the plain language of the provisions directly governing the regulations at issue.  The Court was having none of it:

But regardless whether EPA “believe[s] that three months [is] insufficient to complete the necessary steps in the reconsideration process,” that is not EPA’s call. Congress saw fit to place a three-month statutory limit on “such reconsideration,” and this court “must give effect to the unambiguously expressed intent of Congress.”

Sounds like a court reining in an out-of-control agency in order to ensure that the agency actually follows the law.

Can you say “hoist on its own petard?”

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