|January 19, 2012|
Previously published on January 18, 2012
On January 9, 2012, the federal district court for the District of Columbia found that the Environmental Protection Agency (“EPA”) was arbitrary and capricious in staying the boiler Maximum Achievable Control Technology (“MACT”) rule. EPA originally bound itself in a consent decree to promulgate the rule under an aggressive schedule and asked the court for a fourteen month extension following criticism of its boiler MACT Notice of Proposed Rulemaking. The court gave EPA a one month delay, and EPA issued the rule; however, EPA stayed the rule almost immediately after the rule was promulgated.
The Sierra Club initiated three separate lawsuits to overturn the stay. The district court decided that EPA does have the authority to issue the stay under the Administrative Procedure Act (“APA”) for more than 3 months if the rule is being reconsidered. The court also stated that EPA was correct in that the agency did not have to undertake notice and comment procedures to issue the stay. The district court then determined EPA’s action in issuing the stay was arbitrary and capricious, and the court ruled that EPA could only issue a stay greater than three months if the APA rule needed to be halted pending judicial review, as opposed to agency reconsideration. In this case, EPA’s justification for the stay was not for judicial review. Hence, the court issued an order vacating the stay, which means the rule is in effect again.
EPA is still conducting proceedings to reconsider the MACT rule. EPA may ask the court to stay its decision while the decision is appealed. In addition, the parties in the pending boiler MACT litigation, which is stayed pending the reconsideration, may ask the court for a stay. EPA could reissue the stay with a new rationale tied to the appeals, which will likely face more challenges in court.