Note: This story has been updated.
The Environmental Protection Agency and the chemical industry are accusing the D.C. Circuit of violating its own procedures by prematurely ordering the EPA to start enforcing stricter standards for chemical plants.
The standards, collectively known as the Chemical Disaster Rule, were published at the end of the Obama administration and were meant to reduce the risk of accidents at facilities that store dangerous chemicals. When President Trump took office, his EPA sought to delay the rule from taking effect for nearly two years while the agency informally “reconsidered” whether the stricter standards were needed.
Environmental groups sued over the delay, and in a major opinion last month in Air Alliance Houston v. EPA, a panel of the D.C. Circuit ruled that the delay was illegal. The two-year postponement of a regulation that was already on the books, the court said, “makes a mockery of the statute” and is arbitrary and capricious.
But that did not end the case. An opinion has legal force only when the court issues a “mandate”—essentially a single piece of paper that formally orders an agency or lower court to comply with the ruling expressed in the opinion. Typically, after the D.C. Circuit publishes an opinion, it waits some weeks to issue the mandate in the case. That time gap gives the losing side an opportunity to petition the court for rehearing.
But after the court published its opinion in Air Alliance, the environmental groups asked the court for an “expedited” mandate that would order the EPA to implement the Chemical Disaster Rule right away. Any further delay would create “imminent threats to public health and safety,” the groups said. They specifically pointed to oil refineries and other chemical facilities in the Gulf Coast, arguing that those facilities should be immediately subject to the heightened safety standards now that hurricane season has arrived.
On the afternoon of Friday (Aug. 31)—before the EPA or chemical industry groups had responded to the environmentalists’ motion for an expedited mandate—the D.C. Circuit granted the motion and issued the mandate. That means the EPA is now under a legal obligation to put the Chemical Disaster Rule into effect, even as it seeks to continue challenging last month’s panel decision (likely with a petition for en banc rehearing or a petition for Supreme Court review).
Within hours of the “expedited” mandate being issued, the EPA and industry groups filed emergency papers with the D.C. Circuit, telling the court it disregarded its own rules by issuing the mandate so soon. They argued that the court should have at least waited until they had a chance to file papers opposing the environmentalists’ motion for an expedited mandate. Those opposition papers, they said, were not due until Sept. 4 under a rule that gives parties 10 days to oppose motions.
“The Court never gave Industry Intervenors notice of its decision to grant Petitioners’ motion before the running of this 10-day period and thereby violated Federal Rule of Appellate Procedure 27(a)(3)(A),” the industry groups, joined by the EPA, said in court papers filed Friday evening. “The Court should accordingly rescind the Order and recall its mandate to give Industry Intervenors the opportunity to exercise their right to respond.”
The court took no additional action over Labor Day weekend, and so, at least for now, the mandate remains in effect.
Update Tuesday (Sept. 4), 7 P.M.: After this story was published, the court issued an order Tuesday afternoon undoing the issuance of the expedited mandate. The court said, without elaboration, that the mandate had “inadvertently” been issued before the opponents had a full chance to respond to the request for expediting the mandate. The court ordered the mandate recalled and gave the opponents until Wednesday at 4 p.m. to respond. The EPA then notified the court that it had returned the mandate back.
Here are all the relevant filings in this procedural back-and-forth.
The environmentalists’ motion for an expedited mandate:
The court’s order granting the mandate and the mandate itself:
Three emergency filings from chemical industry interests, the EPA, and conservative states challenging the court’s decision to issue an expedited mandate so soon:
The court’s order “recalling” the mandate and acknowledging that its Friday issuance was premature:
