This column by ACRU General Counsel Ken Klukowski was published July 9, 2017 by Breitbart.
WASHINGTON, DC — A federal appeals court in Washington, DC, last week claimed the power to override President Donald Trump’s Environmental Protection Agency when the agency reconsiders an Obama-era regulation. While the specifics sound bureaucratic and are laced with legalese, this decision creates a new precedent that likely only the Supreme Court can reverse.
Obama EPA Administrator Gina McCarthy issued a final rule (i.e., a regulation) in June 2016 creating new standards for methane and oil and gas pollutants. The American Petroleum Institute and other industry groups petitioned the EPA to reconsider the rule. The Clean Air Act (CAA) requires the EPA reconsider a rule when either of two statutory requirements is met.
Although the Obama administration declined to reconsider the rule, on April 18 Trump EPA Administrator Scott Pruitt concluded that at least one of the objections in the petitions legally required reconsideration under a specific section of the CAA.
Pruitt invoked his statutory authority to impose a 90-day stay of the Obama rule during this reconsideration. Then on June 16, the EPA published a notice of proposed rulemaking, announcing that it would stay the Obama rule for two years while it develops a new rule to replace it.
At that point, six environmental groups filed an Administrative Procedure Act (APA) petition at the U.S. Court of Appeals for the District of Columbia Circuit to review the EPA’s action. The petitioners asked for summary vacatur (that is, asking for the appeals court to immediately negate and throw out the EPA’s decision) or at least an emergency stay (a judicial stay to trump the EPA’s administrative stay, as confusing as that sounds) pending full legal briefing and argument. The energy groups who first filed the EPA petition have intervened in this lawsuit, siding with the Trump administration.
The EPA argues that its decision to reconsider the rule is not a “final action” of the agency, and the intervenors similarly argue that the EPA’s stay of the Obama rule is not a “final action.” Those two arguments are important because a federal appeals court has jurisdiction to consider a petition under the APA only if it involves a final agency action.
Under Supreme Court precedent, an action is a final agency action if it marks “the consummation of the agency’s decisionmaking process” and is “one by which rights or obligations have been determined, or from which legal consequences will flow.”
On July 3, the D.C. Circuit vacated the EPA’s stay for being arbitrary, capricious, and in excess of the agency’s legal authority.
Judge Janice Rogers Brown dissented, beginning with the fact that the APA deprives courts of jurisdiction when “agency action is committed to agency discretion by law.”
She also wrote that “it is far from clear” that appeals courts have jurisdiction to stay (i.e., block) an administrative stay issued by the EPA or similar agencies. She went on to write that the statute is better read as providing that, when a person or group is seeking a stay of an EPA rule, either the EPA itself or a federal court can grant a stay, rather than saying that one (the court) can stay the decision of the other (the EPA).
Moreover, Brown added, “hitting the pause button is the antithesis of ending the matter,” and therefore the EPA’s stay while it reconsiders the Obama rule is not a “final action” that her court can review under the APA.
“Certainly the rule of law would benefit from the judiciary shedding its unfortunate sheepishness towards reviewing agency action,” Brown later continued, sounding a lot like similar statements from Justice Neil Gorsuch. “But that noble goal does not absolve us from carefully considering why and when we are meant to review agency action.”
The EPA and the energy industry have about another week to decide whether to seek en banc review before the full 11-judge D.C. Circuit, though President Barack Obama’s stacking of that court through the nuclear option makes it very doubtful that the full court would lead to a different result. The only other route is to seek review by the Supreme Court.
The case is Clean Air Council v. Pruitt, No. 17-1145 at the D.C. Circuit.