In a minor victory for the EPA, a panel on the U.S. Court of Appeals for the D.C. Circuit agreed to recall its July 3, 2017, vacatur (mandate) of the Trump EPA’s 90-day administrative stay of the Obama EPA’s June 2016 New Source Performance Standards (NSPS) for fugitive emissions (leaks) of methane and other pollutants by the oil and natural gas (O&G) industries. The recall is limited to 14 days from July 13, 2017. According to the court, that gives the Agency time to “determine whether to seek panel rehearing, rehearing en banc [i.e., by the full court], or pursue other relief.”
Absent the 14-day recall, the EPA would be required to implement all provisions of the 2016 NSPS while the Agency reviews whether it wants to keep, revise, or rescind the rule. The EPA has proposed an additional 90-day stay of the NSPS as well as a 2-year stay during which it says it will reconsider certain requirements; both of those proposals are subject to formal rulemaking, including public notice and opportunity to comment. The court’s recall affects only the 90-day administrative stay, which the Agency issued without notice and opportunity to comment.
Deviating from Standard Practice
Following the July 3 vacatur, the EPA filed a motion with the D.C. Circuit, noting that the immediate effective date of the vacatur deprived the Agency and those intervening on its behalf of the ordinary time to consider the decision and decide whether to seek further review. In its motion, the EPA states:
“Typically, the Court defers issuance of the mandate until one week after the rehearing period runs, and it is up to parties seeking to shorten or lengthen that period to show the Court why ‘good cause’ exists for such relieve. By deviating from this standard process, the Court deprived respondents and the regulated community of the opportunity to explain to the court why expedited issuance of the mandate would be unwarranted, and by the same token, relieved petitioners of their obligation of showing why they believed expedited issuance was justified. As a result, the regulated community suddenly and without warning finds itself subject to significant compliance and potential enforcement obligations, all during the time when both EPA and other parties are considering whether or not to seek further review. The mere fact that petitioners have currently obtained summary vacatur of the EPA’s stay decision does not in and of itself justify requiring immediate compliance during the period when EPA and respondent-intervenors are considering whether to seek further review.”
Limit on Relief
The panel issued the 14-day order in a single paragraph, noting that to “stay issuance of the mandate for longer would hand the Agency, in all practical effect, the very delay in implementation this panel determined to be ‘arbitrary, capricious, [and] … in excess of [EPA’s] … statutory authority.”
Put another way, the panel found merit in EPA’s argument that immediate compliance with the NSPS was inappropriate following the vacatur of the 90-day stay but refused to provide the Agency a period of relief from the vacatur beyond 14 days, which would have the same effect as the 90-day administrative stay the court found illegal.