Days after a federal appeals court removed a stay over parts of proposed rules governing new sources of methane emissions from the oil and gas industry, the U.S. Environmental Protection (EPA) took the unusual step of asking the court to recall its mandate, thereby giving the agency more time to weigh its options.
In a 2-1 decision issued last Monday, the U.S. Court of Appeals for the District of Columbia ruled that EPA Administrator Scott Pruitt exceeded his authority last May when he proposed a 90-day stay over the fugitive emissions, pneumatic pumps and professional engineer certification requirements outlined in updates to its New Source Performance Standards (NSPS). A coalition of six conservation groups filed suit over Pruitt’s move in June.
But last Friday, the EPA argued that the court’s decision to lift the stay and immediately “issue the mandate forthwith to the agency” went counter to standard practice.
“Although the court has discretion to shorten or extend the time after which the mandate issues, the court’s standard practice is that the mandate ‘must issue seven days after the time to file a petition for rehearing expires, or seven days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later,’ the EPA said.
“By taking the unusual step of directing that the mandate issue forthwith, the court required immediate compliance with its decision (and, therefore, compliance with the full scope of the 2016 rule, including those provisions that are being reconsidered), notwithstanding that EPA and regulated parties would ordinarily be provided with 52 days, or longer, before compliance was required.”
Court records show that several industry groups — led by the American Petroleum Institute, and including the GPA Midstream Association, the Interstate Natural Gas Association of America, the Independent Petroleum Association of America and Western Energy Alliance — filed a motion in support of the EPA’s request to recall the mandate on Tuesday.
“The cost to regulated entities during EPA’s ongoing evaluation of the stayed provision…supports withdrawing the mandate,” the industry groups said. “It does not serve the public interest to issue the mandate immediately upon issuance of the decision here, especially since EPA is currently evaluating whether to reconsider and possibly revise the 2016 NSPS Rule.
“EPA has also proposed to extend the compliance deadlines for these provisions in the 2016 NSPS Rule for two years to allow for this reconsideration process to occur without unnecessary disruption. The court should withdraw the mandate and reissue it only after allowing the parties to complete the rehearing process, in accordance with this court’s typical practice.”
Conversely, the six groups that successfully blocked the stay — the Natural Resources Defense Council, the Clean Air Council, Earthworks, the Environmental Defense Fund, the Environmental Integrity Project and the Sierra Club — filed a motion in opposition on Tuesday.
“The court’s immediate issuance of the mandate was entirely proper in the circumstances of this case,” the conservation groups argued. “The Federal Rules of Appellate Procedure recognize courts’ broad discretion to exercise their remedial powers, explicitly permitting the courts to ‘shorten or extend the time’ for issuing the mandate.”
Thirteen states — Connecticut, Delaware, Illinois, Iowa, Maryland, Massachusetts, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington — the District of Columbia and the City of Chicago also filed a separate motion opposing the EPA’s request on Tuesday. The case is Clean Air Council et al v. Pruitt et al[No. 17-1145].
About 175 people, including several representing environmental groups, packed an all-day public hearing at EPA headquarters on Monday over the agency’s plans for a two-year stay of the rules.
EPA first unveiled the 2016 NSPS during the Obama administration. The rules were designed to reduce methane, volatile organic compounds (VOCs) and toxic air pollutants.
Last April, the EPA said it would reconsider the rules to comply with an executive order (EO) signed by President Trump on March 28. The EO included a directive for EPA to immediately review regulations on energy sources, and then to either suspend, revise or rescind them.
The EPA issued a 90-day administrative stay of the rules on May 31. In order to ensure against a gap in the stay during the reconsideration process, the agency proposed an additional three-month stay, followed by another lasting two years.
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