EPA retains authority under Section 7412(r)(7) to substantively amend the programmatic requirements of the Chemical Disaster Rule, and pursuant to that authority, revise its effective and compliance dates, subject to arbitrary and capricious review.
. . . the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational explanation of the facts found and the choice made.” When an agency reverses itself, it “must show that there are good reasons for the new policy,” but it need not show that “the reasons for the new policy are better than the reasons for the old one.” However, if the “new policy rests upon factual findings that contradict those which underlay its prior policy,” it must provide “a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.”
What does it mean?
The district court said they could have made a new rule which struck down the Obama-era updated rule, but they can’t delay that Obama-era rule longer than the 90 days in the CAA statute. So, the EPA has a few options here:
- Appeal the decision
- Follow the statutory rule-making process and delay the rule for a period they can defend.
- Follow the statutory rule-making process and remove / modify the requirements of the Obama-era updated rule effectively replacing it with a Trump-era one.
- Implement the Obama era rule (This isn’t quite possible as some of the compliance dates have passed or are very close.)
My guess is that it’s a combination of the first 3 options.
You can read the court’s ruling in its entirety online.
Update: 090618 : The drama continues: “Tuesday afternoon the judges reversed that order, saying it had been made “inadvertently.” The Aug. 17 decision is still in place, but it will not take effect until (at least) Oct. 8.”