Three Weeks; Three Decisions Rejecting Regulatory Delays

The Trump administration.  The gift that keeps on giving to bloggers.  After posting last week about the order requiring DOE to send its energy efficiency standards to the Federal Register for publication, I noted that that regulatory delay cases were going to have to become a regular feature in this space.  Lo and behold, on the same date, Judge Jeff White rejected EPA’s “Delay Rule” that would have postponed compliance deadlines under the Formaldehyde Act.  

The decision was not difficult.  The Court concluded that the statute unambiguously precluded EPA’s interpretation.

Although the Court owes deference to the EPA’s interpretation of the statute, the Court is compelled to give meaning to the statutory provisions and cannot endorse an interpretation that permits the EPA to exercise its authority “‘in a manner that is inconsistent with the administrative structure that Congress enacted into law.’”

The EPA’s interpretation creates inconsistency within the full text of the Act, renders the 180-day compliance deadline superfluous, leads to the absurd result of permitting the perpetual delay of the effectiveness of the Formaldehyde Rule, and fails to satisfy the stated purpose of the Act. Accordingly, the Court finds that the Delay Rule is in excess of the EPA’s authority under the Formaldehyde Act and is not in accordance with law.

That’s three strikes in less than three weeks, but I don’t expect the administration to stop swinging.  I would give the administration one piece of advice and suggest that calling something the “Delay Rule” seems to be asking for trouble.

Of course, I shouldn’t rule out the possibility that the administration cares more about advertising its effort at delaying regulations than it does in actually winning these cases.

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