New York Times
By Lisa Friedman
July 3, 2017
WASHINGTON — Dealing a legal blow to the Trump administration, a federal appeals court ruled on Monday that the Environmental Protection Agency cannot suspend an Obama-era rule to restrict methane emissions from new oil and gas wells.
The 2-to-1 decision from the United States Court of Appeals for the District of Columbia Circuit is a legal setback for Scott Pruitt, the E.P.A. administrator, who is trying to roll back dozens of Obama-era environmental regulations. The ruling signals that the Trump administration’s efforts to simply delay environmental and public health actions are likely to face an uphill battle in the courts and require a more painstaking process.
The administration had suffered several reversals in federal court to its plans to limit immigration from a group of majority-Muslim nations until the Supreme Court allowed part of the policy to proceed late last month. A federal judge in California also blocked the administration’s threat to penalize cities that provide legal sanctuary for undocumented immigrants.
A number of other Trump administration actions to undo regulations it inherited, including a rule on grizzly bear protection and another on chemical spills, are likely to receive close scrutiny from the courts.
Mr. Pruitt had imposed a 90-day moratorium, which he later extended to two years, on enforcement of parts of the E.P.A. methane regulation. He had also argued that his action was not subject to court review. But the appeals court ruled that the agency’s decision was “unreasonable,” “arbitrary” and “capricious.” The agency, it said, did not have authority under the Clean Air Act to block the rule.
“E.P.A.’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,” Judges David Tatel and Robert Wilkins wrote. The third member of the three-judge panel, Janice Rogers Brown, dissented.
The judges said that the agency had the right to reverse the methane regulations but would have to undertake a new rule-making process to undo the Obama administration’s regulation.
An E.P.A. spokeswoman said the agency was reviewing the opinion and would weigh its options.
Critics say the Trump administration has improperly delayed other regulations as well, and have challenged a May E.P.A. decision to suspend for 90 days a rule aimed at cutting methane emissions from landfills.
In June, the Interior Department also delayed for two years a set of rules that would have limited the release of methane from wells on federal and tribal lands. That rule has been in the administration’s cross hairs, but an attempt to reverse it in Congress failed when Senator John McCain, Republican of Arizona, and two other Republicans defected.
The administration has also used the delay tactic to stop a Food and Drug Administration rule requiring restaurants to list the calories in the food they sell and a Labor Department regulation mandating that financial advisers put consumers’ best interests ahead of their own.
The E.P.A. has been in the vanguard of the administration’s attempts to dismantle what Mr. Trump and his advisers consider an oppressive regulatory state. In a February executive order, Mr. Trump instructed cabinet officers to look for every opportunity “to alleviate unnecessary regulatory burdens placed on the American people.”
Monday’s court ruling signals that this will not be accomplished overnight.
The administration has had some success in delaying or reversing former President Barack Obama’s climate change and environmental policies, but other actions face serious legal hurdles. After the E.P.A. allowed farmers to use a pesticide called chlorpyrifos that has been found to harm children’s brains, California and six other states challenged the decision.
And the effort to reverse the Clean Power Plan regulation on power plant carbon emissions — the rule at the heart of Mr. Obama’s climate change agenda — could take years. Mr. Pruitt is expected to publish the details of his plan to repeal the regulation in the coming weeks.
David Doniger, director of the climate and clean air program at the Natural Resources Defense Council, said he believed the administration would be on the losing end of those battles.
“This is the first of what we hope will be many court setbacks for Scott Pruitt, whose devotion to the law is rhetorical and not real,” he said.
The methane rule was part of a broad suite of climate regulations enacted by Mr. Obama. Methane is a potent greenhouse gas 25 times more powerful than carbon dioxide.
Oil and gas companies have argued that the rule requiring them to report and fix any methane leaks in their equipment is an unnecessary burden because many oil-producing states already have their own regulations. The E.P.A. announced on June 5 that it was suspending enforcement of the rule, arguing that the industry had not had enough opportunity to comment. The court rejected that argument.
Reid Porter, a spokesman for the American Petroleum Institute, said that standards set in 2012 were already reducing methane emissions. “A stay is needed to allow for regulatory certainty as E.P.A. continues the formal process to review the rule making,” he said in a statement.