Court questions greens’ challenge to EPA chemical rule delay

A panel of three federal judges appeared skeptical at times on Friday in questioning attorneys representing environmentalists and Democratic states that are challenging the Trump administration’s ongoing delay of a major chemical plant safety rule.

Two of the judges in the panel from the Court of Appeals for the District of Columbia Circuit questioned the litigants who are trying to restrict a new administration’s ability to change a previous administration’s policies and priorities.

But the panel was also at times skeptical of the Trump administration for requesting such a long delay — more than a year at this point — to reconsider the Environmental Protection Agency’s (EPA) regulation. Judges asked whether the Clean Air Act restricts the time that a new administration can push back reconsideration of a previous administration’s regulation.

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The case, Air Alliance Houston v. EPA, concerns a major Obama administration regulation that was finalized shortly before President Trump took office.

It is meant to beef up emergency protocols for chemical plants and other facilities, through actions like making more information available to local first responders.

But shortly after current EPA head Scott Pruitt came into office last February, he accepted requests by the chemical industry and others to pause implementation of parts of the rule that were due to take effect that year.

He later instituted a 20-month delay of the rule, pushing it into 2019, while the EPA works on potential changes. Among the EPA’s top concerns are that plants would have to release information that criminal actors could use to harm the facilities.

Environmentalists and Democratic states have sued, saying the EPA doesn’t have the authority to unilaterally delay rules that long.

But Judge Brett Kavanaugh, nominated by former President George W. Bush, repeatedly argued for the right of a new administration to change its predecessor’s policies.

“I have always thought that it’s Administrative Law 101 that an agency can amend a prior rule by notice-and-comment rulemaking and that an effective date or a compliance date is part of a rule. Therefore, connecting those two things, an agency can always amend an effective date or compliance date in a prior rule by using notice-and-comment rulemaking,” Kavanaugh said while Steve Wu, the deputy solicitor general for New York state, was presenting arguments.

“It just seems like that’s good government, when an agency is presented with things that might be different from what they assumed, to think about that,” Kavanaugh said.

Judge Judith Rogers, nominated by former President Bill Clinton, spoke less frequently, but also stood up for the right of a new president to take a different approach.

“A new administration comes in and there may be different ways of looking at information,” she said.

“This is complicated. A new administration, they’re trying to figure out where their offices are, who their assistants are going to be, what experts they’re going to rely on. All that can’t happen in 90 days,” Rogers continued, referring to the initial three-month period that the Clean Air Act lets the EPA delay a rule.

Judge Robert Wilkins, nominated by former President Obama, spoke rarely, but did chime in that “as best as I can see,” the restrictions on the agency’s ability to delay rules did not apply to the rule at issue.

But some judges also showed skepticism of the Trump administration’s actions.

Rogers pointed out that the Clean Air Act gave a three-month window for reconsideration.

“You have this provision on reconsideration, and at least Congress said it’s limited to 90 days,” she told Jonathan Brightbill, a Justice Department attorney representing the EPA.

Rogers was concerned that the EPA could indefinitely postpone the rule without amending it. “So, this could go on forever,” she asked. “This rule never goes into effect?”

Trump administration agencies have faced numerous roadblocks in attempts to delay the previous administration’s rules, with many courts saying the administration did not have the authority to do so.

In one such case, decided last year, the D.C. Circuit Court shot down an EPA attempt to delay a rule to limit methane emissions from oil and natural gas drilling.