Since President Trump took office, his Environmental Protection Agency has been trying to roll back an Obama-era regulation on chemical safety by delaying its implementation for nearly two years. On Friday (Aug. 17), the D.C. Circuit rejected the EPA’s delay effort and told the agency that if it wants to rescind the rule, it has to go through formal notice-and-comment rulemaking. Merely postponing the rule’s effective date while the agency “reconsiders” the policy, the court said, is too cute by half.
“EPA may not employ delay tactics to effectively repeal a final rule while sidestepping the statutorily mandated process for revising or repealing that rule on the merits,” the court held in Air Alliance Houston v. EPA. The ruling is the latest in a series of legal blows to the Trump administration’s efforts to dismantle environmental regulations adopted under President Obama.
The rule at play here, called the Chemical Disaster Rule, was finalized in the waning days of Obama’s term in response to several prominent disasters at chemical plants across the country, including one at a West, Texas fertilizer plant that killed 15 people and injured hundreds more. The key parts of the rule beefed up emergency preparedness for local first responders and required more information sharing between chemical companies and the public. The thinking was that information sharing would help first responders, like firefighters, better prepare for these disasters, because chemical fires are different from run-of-the-mill house fires.
Opponents of the rule, led by chemical industry interests, argued that sharing information about dangerous chemicals was a national security risk. That was one of the main arguments the EPA used to try to defend its delay of the rule during oral argument at the D.C. Circuit back in March.
But the court didn’t buy it. Ruling in favor of environmental groups and some states that challenged the EPA’s delay, the court found that Congress had explicitly limited the amount of time that the agency could use an informal “reconsideration” to postpone the effectiveness of this sort of rule. That statutory limit, the court said, is just three months—far shorter than the 20 months that the EPA sought to freeze the Chemical Disaster Rule. The EPA argued that it needed more than three months to rethink the rule and its implications on the chemical industry, but the court said that was “not EPA’s call,” and it said the agency’s theory “makes a mockery of the statute.”
Notably, after finding that the EPA delay was barred by the plain text of the statute, the court went a step further to hold that the agency’s action was also arbitrary and capricious because it had “not engaged in reasoned decisionmaking.”
The ruling in Air Alliance is one of four major decisions by federal courts over the last two weeks striking down efforts by the Trump administration to roll back environmental regulations.
The ruling is also reminiscent of a major D.C. Circuit opinion issued a year ago in Clean Air Council v. Pruitt. That case involved a similar effort by the Trump EPA to postpone the implementation of a regulation on methane emissions, but the D.C. Circuit held that the agency lacked the authority to do so.
Friday’s ruling in Air Alliance, however, does not necessarily mean the Chemical Disaster Rule is here to stay. As the court noted, the EPA has the power to rescind the rule altogether as long as it goes through the formal rule-making process. The EPA began that very process in May while the case was pending.
The ruling came in a per curiam opinion joined by Judges Rogers and Wilkins. Judge Kavanaugh also was on the panel that heard the case, but as with all of his other cases since his Supreme Court nomination, Kavanaugh played no role in the opinion. Circuit Breaker previously did a video spotlight on the case here.
