United States Court of Appeals, District of Columbia Circuit
Emergency Motion For A Stay Or, In the Alternative, Summary
Susannah L. Weaver, Sean H. Donahue, David Doniger, Meleah
Geertsma, Tim Ballo, Joel Minor, Adam Kron, Peter Zalzal,
Alice Henderson, Vickie Patton, Tomás Carbonell,
Andres Restrepo, Joanne Marie Spalding, Ann Brewster Weeks,
and Darin Schroeder were on the emergency motion for a stay
or, in the alternative, summary vacatur and reply to
responses in opposition to emergency motion for a stay or, in
the alternative, summary vacatur.
Jeffrey H. Wood, Acting Assistant Attorney General, U.S.
Department of Justice, and Benjamin Carlisle, Attorney, were
on EPA's opposition to petitioners' emergency motion
for a stay or, in the alternative, summary vacatur.
William L. Wehrum, Felicia H. Barnes, Stacy R. Linden, John
Wagner, Samuel B. Boxerman, Joel F. Visser, Sandra Y. Snyder,
James D. Elliott, Shannon S. Broome, Charles H. Knauss, and
John R. Jacus were on the industry
intervenor-respondents' response in opposition to
petitioners' emergency motion for a stay or, in the
alternative, summary vacatur.
Before: Tatel, Brown, and Wilkins, Circuit Judges.
a group of environmental organizations, challenge the
Environmental Protection Agency's decision to stay
implementation of portions of a final rule concerning methane
and other greenhouse gas emissions. For the reasons set forth
in this opinion, we conclude that EPA lacked authority under
the Clean Air Act to stay the rule, and we therefore grant
petitioners' motion to vacate the stay.
2016, EPA Administrator Gina McCarthy issued a final rule
establishing "new source performance standards" for
fugitive emissions of methane and other pollutants by the oil
and natural gas industries. 81 Fed. Reg. 35, 824 (June 3,
2016). The methane rule took effect on August 2, 2016,
id., and required regulated entities to conduct an
"initial monitoring survey" to identify leaks by
June 3, 2017, 40 C.F.R. § 60.5397a(f).
EPA published the rule, several industry groups- including
the American Petroleum Institute (API), the Texas Oil and Gas
Association (TXOGA), and the Independent Petroleum
Association of America (IPAA)-filed administrative petitions
seeking reconsideration under section 307(d)(7)(B) of the
Clean Air Act (CAA). 42 U.S.C. § 7607(d)(7)(B); see
also 82 Fed. Reg. 25, 731 (June 5, 2017). That provision
sets forth the circumstances under which EPA must
reconsider a rule. It provides that "[i]f the person
raising an objection can demonstrate to the Administrator
that  it was impracticable to raise such objection within
[the notice and comment period] . . . and  if such
objection is of central relevance to the outcome of the rule,
the Administrator shall convene a proceeding for
reconsideration of the rule . . . ." 42 U.S.C. §
7607(d)(7)(B) (emphasis added). The statute also provides
that the "effectiveness of the rule may be stayed during
such reconsideration, however, by the Administrator or the
court for a period not to exceed three months."
Id. The industry associations argued that CAA
section 307(d)(7)(B) required EPA to reconsider the final
rule because several of its provisions "were not
included in the proposed rule and . . . [they were therefore
unable] to raise an objection during the public comment
period." See, e.g., API, Request for
Administrative Reconsideration of EPA's Final Rule
"Oil and Natural Gas Sector: Emission Standards for New,
Reconstructed, and Modified Sources, " at 1 (Aug. 2,
2016) ("API Reconsideration Request"). They also
sought a stay "pending reconsideration."
letter dated April 18, 2017, the Administrator, now Scott
Pruitt, stated that EPA "[found] that the petitions have
raised at least one objection to the fugitive emissions
monitoring requirements" that warrants reconsideration
"under 307(d)(7)(B) of the CAA." Letter from E.
Scott Pruitt to Howard J. Feldman, Shannon S. Broome, James
D. Elliott, & Matt Hite, Convening a Proceeding for
Reconsideration, at 2 (Apr. 18, 2017). Accordingly, the
Administrator announced, "EPA is convening a proceeding
for reconsideration" of two specific provisions of the
methane rule. Id. The letter also stated that
"EPA intend[ed] to exercise its authority under CAA
section 307 to issue a 90-day stay of the compliance
date" for the fugitive emissions requirements.
5-just two days after the deadline for regulated parties to
conduct their first emissions surveys and begin repairing
leaks, see 40 C.F.R. § 60.5397a(f)-EPA
published a "[n]otice of reconsideration and partial
stay" in the Federal Register, 82 Fed. Reg. at 25, 730.
Relying on CAA section 307(d)(7)(B), EPA granted
reconsideration on four aspects of the methane rule: (1) the
decision to regulate low-production wells, (2) the process
for proving compliance by "alternative means, " (3)
the requirement that a professional engineer certify proper
design of vent systems, and (4) the decision to exempt
pneumatic pumps from regulation only if a professional
engineer certified that it was "technically
infeasible" to route such pumps "to a control
device or a process." 82 Fed. Reg. at 25, 731-32. In
addition, the notice "stay[ed] the effectiveness of the
fugitive emissions requirements, the standards for pneumatic
pumps at well sites, and the certification by a professional
engineer requirements" for 90 days "pending
reconsideration." 82 Fed. Reg. at 25, 732. The notice
explained that the stay had gone into effect on June 2,
2017-that is, three days before the notice was published in
the Federal Register. 82 Fed. Reg. at 25, 731.
16, EPA published a notice of proposed rulemaking (NPRM)
announcing its intention to extend the stay "for two
years" and to "look broadly at the entire 2016
Rule" during "the reconsideration proceeding."
82 Fed. Reg. 27, 645 (June 16, 2017). Comments on that NPRM
are due July 17, or if any party requests a hearing, by
August 9. Id.
EPA suspended implementation of the methane rule, six
environmental groups-Environmental Defense Fund, Natural
Resources Defense Council, Environmental Integrity Project,
Earthworks, Clean Air Council, and Sierra Club-filed in this
court an "emergency motion for a stay or, in the
alternative, summary vacatur." According to
Environmental Petitioners, EPA's stay violates CAA
section 307(d)(7)(B) because "all of the issues
Administrator Pruitt identified could have been, and
actually were, raised (and extensively deliberated)
during the comment period." Environmental
Petitioners' Mot. 5 (emphasis in original). EPA opposes
the motion, as do intervenors, a group of oil and gas
associations including API, IPAA, and TXOGA. Together, they
argue that we lack jurisdiction to review the stay, and that
even if it were justiciable, the stay is lawful. We consider
these arguments in turn.
begin with jurisdiction. Both EPA and Industry Intervenors
argue that an agency's decision to grant reconsideration
of a rule is unreviewable because it does not constitute
"final action" under 42 U.S.C. § 7607(b)(1).
EPA Opp. 8; Intervenors' Opp. 6. Industry Intervenors
argue that for the same reason we lack jurisdiction to review
the stay. Intervenors' Opp. 8.
true that an agency's decision to grant a petition to
reconsider a regulation is not reviewable final agency
action. See Portland Cement Association v. EPA, 665
F.3d 177, 185 (D.C. Cir. 2011) (noting that review is
available "if reconsideration is denied"
(emphasis added)). To be "final, " agency action
must "mark the consummation of the agency's
decisionmaking process" and "be one by which rights
or obligations have been determined, or from which legal
consequences will flow." Bennett v. Spear, 520
U.S. 154, 177- 78 (1997) (citations and internal quotation
marks omitted). By itself, EPA's decision to grant
reconsideration, which merely begins a process that could
culminate in no change to the rule, fails this test.
imposition of the stay, however, is an entirely different
matter. By staying the methane rule, EPA has not only
concluded that section 307(d)(7)(B) requires reconsideration,
but it has also suspended the rule's compliance
deadlines. EPA's stay, in other words, is essentially an
order delaying the rule's effective date, and this court
has held that such orders are tantamount to amending or
revoking a rule. As we explained in a very similar situation,
where an agency granted an application for interim relief
from a safety standard while it reconsidered that standard:
"In effect, the Administrator has granted a modification
of the mandatory safety standard for the entire period of
time that the petition is pending. There is no indication
that the Secretary intends to reconsider this decision or to
vacate the grant of interim relief. Thus, the Secretary's
decision represents the final agency position on this issue,
has the status of law, and has an immediate and direct effect
on the parties. Therefore, we have no difficulty concluding
that the Secretary has issued a final decision . . . ."
International Union, United Mine Workers of America v.
Mine Safety & Health Administration, 823 F.2d 608,
614-15 & n.5 (D.C. Cir. 1987) (citation omitted); see
also Environmental Defense Fund, Inc. v. Gorsuch, 713
F.2d 802, 813 (D.C. Cir. 1983) ("[S]uspension of the
permit process . . . amounts to a suspension of the effective
date of regulation . . . and may be reviewed in the court of
appeals as the promulgation of a regulation.");
Council of Southern Mountains, Inc. v. Donovan, 653
F.2d 573, 579 nn.26 & 28 (D.C. Cir. 1981) (rejecting the
argument that the court lacked jurisdiction to review an
order "defer[ring] the implementation of
addition to "mark[ing] the consummation of . . .
[EPA's] decisionmaking process" with respect to the
final rule's effective date, the stay also affects
regulated parties' "rights or obligations."
Bennett, 520 U.S. at 178 (citation and internal
quotation marks omitted). Absent the stay, regulated entities
would have had to complete their initial monitoring surveys
by June 3 and repair any leaks within thirty days.
See 40 C.F.R. § 60.5397a(f), (h). Failure to
comply with these requirements could have subjected oil and
gas companies to civil penalties, citizens' suits, fines,
and imprisonment. See 42 U.S.C. § 7413(b)-(d)
(providing for civil and criminal penalties for failure to
comply with emissions rules); id. § 7604(a)
(authorizing citizens' suits for alleged violations of
emissions standards); 40 C.F.R. § 19.4 (establishing the
schedule of fines for CAA violations). The stay-which EPA
made retroactive to one day before the June 3
compliance deadline-eliminates that threat, see 82
Fed. Reg. at 25, 731, and thus relieves regulated parties of
liability they would otherwise face.
dissent draws a sharp distinction between the denial of a
stay, which would have required regulated entities to comply
with the rule, and the imposition of the stay, which erased
that obligation. As the dissent sees it, only forced
compliance has "obvious consequences" for regulated
parties. Dissent at 5. But this one-sided view of final
agency action ignores that, by staying the rule's
effective date and its compliance duties, EPA has determined
"rights or obligations . . . from which legal
consequences will flow." Bennett, 520 U.S. at
178. The dissent's view is akin to saying that incurring
a debt has legal consequences, but forgiving one does not. A
debtor would beg to differ.
dissent also stresses that EPA's proceedings concerning
the methane rule are ongoing. Dissent at 3; see 82
Fed. Reg. at 27, 645; 82 Fed Reg. 27, 641 (June 16, 2017).
But as we have explained, "the applicable test is not
whether there are further administrative proceedings
available, but rather whether the impact of the order is
sufficiently final to warrant review in the context of the
particular case." Friedman v. FAA, 841 F.3d
537, 542 (D.C. Cir. 2016) (quoting Environmental Defense
Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 591 (D.C. Cir.
1971)). Here, because the stay relieves regulated parties of
any obligation to meet the June 3 deadline-indeed EPA has
proposed to extend the stay for years, see 82 Fed.
Reg. at 27, 645-the "order is sufficiently final to
warrant review, " Friedman, 841 F.3d at 542.
Cf. Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 436 (D.C.
Cir. 1986) ("Once the agency publicly articulates an
unequivocal position . . . and expects regulated entities to
alter their primary conduct to conform to that position, the
agency has voluntarily relinquished the benefit of postponed
argument that courts have no authority to review CAA section
307(d)(7)(B) stays is also at odds with the statute's
language. Section 307(d)(7)(B) authorizes not only the
Administrator, but also courts to stay a final rule.
42 U.S.C. § 7607(d)(7)(B) (authorizing "the
Administrator or the court" to issue a three-month
stay). Given that Congress granted this court the power to
enter a stay, it seems quite anomalous that it did not also
confer upon us the lesser power to review the
Administrator's decision to issue a stay.
EPA's reading would have the perverse result of
empowering this court to act when the agency denies a stay
but not when it chooses to grant one. Under section
307(d)(7)(B), if EPA had granted reconsideration but declined
to impose a stay, the industry groups could have come to this
court seeking a stay. See Mexichem Specialty Resins, Inc.
v. EPA, 787 F.3d 544, 558 (D.C. Cir. 2015) (declining to
grant a stay during the pendency of a reconsideration
proceeding because petitioners had failed to demonstrate
irreparable harm). Yet, in EPA's view, where, as here, it
grants reconsideration and imposes a stay, we have
no power to hear the case. Nothing in section 307-or any
other provision cited by the parties or the dissent-suggests
that this court's jurisdiction turns on whether EPA
grants as opposed to denies a stay.
Industry Intervenors argue that Environmental
Petitioners' motion amounts to a collateral attack on the
underlying reconsideration proceeding. See also
Dissent at 4. But CAA section 307(d)(7)(B) expressly links
EPA's power to stay a final rule to the two requirements
for mandatory reconsideration, i.e., that it was
"impracticable to raise" an objection during the
public comment period and the objection is "of central
relevance to the outcome of the rule." Only when these
two conditions are met does the statute authorize the
Administrator to stay a lawfully promulgated final rule.
Accordingly, to determine whether the stay was lawful-that
is, to assess EPA's final action-we must consider whether
the agency met the statutory requirements for
reconsideration. In other words, although absent a stay we
would have no authority to review the agency's decision