Air Alliance Hous. v. Envtl. Prot. Agency

• Citation: 906 F.3d 1049
• Decision Date: 17 August 2018
• Docket Number: C/w 17-1181,No. 17-1155,17-1155
• Parties: AIR ALLIANCE HOUSTON, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, Acting Administrator, U.S. Environmental Protection Agency, Respondents United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, et al., Intervenors
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

906 F.3d 1049

AIR ALLIANCE HOUSTON, et al., Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, Acting Administrator, U.S. Environmental Protection Agency, Respondents

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, et al., Intervenors

No. 17-1155
C/w 17-1181

United States Court of Appeals, District of Columbia Circuit.

Argued March 16, 2018
Decided August 17, 2018

Steven C. Wu, Deputy Solicitor General, Office of the Attorney General for the State of New York, argued the cause for State Petitioners. With him on the briefs were Eric T. Schneiderman, Attorney General, Barbara D. Underwood, Solicitor General, David S. Frankel, Assistant Solicitor General, Michael J. Myers, Assistant Attorney General, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Paul Garrahan, Attorney-in-Charge, Peter F. Kilmartin, Attorney General, Office of the Attorney General for the State of Rhode Island, Gregory S. Schultz, Special Assistant Attorney General, Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General for the State of Vermont, Nicholas F. Persampieri, Assistant Attorney General, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, Matthew J. Dunn, Gerald T. Karr, James P. Gignac, Assistant Att orneys Genera l, Tom Miller, Attorney Gener al, Office of the Attorney G eneral for the State of Iowa, Jacob Larson, Assistant At torney General,Janet T. Mills, Attorney General, Offic e of the Attorne y General for th e State of Maine, Gerald D. Reid, Natural Resources Division Chief, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, William R. Sherman, Assistant Attorney Gene ral, Brian E. Frosh, Attorney General, Office of the At torney General for t he State of Maryland, Steven M. Sullivan, Solicitor General, Maura Healey, Attorney General, Office of the Attorney Genera l for the Commonwealth of Massachusetts, Chr istophe Courchesne, As sistant Attorney Gener al, Hector H. Balderas, Attorney General, Office of the Attorney General for the State of New Mexico, and William Grantham, Assistant Attorney General.

Emma C. Cheuse and Susan J. Eckert argued the cause for Community Petitioners and Petitioner-Intervenor. With them on the briefs were Gordon E. Sommers and Joseph M. Santarella, Jr.

Scott L. Nelson and Allison M. Zieve were on the brief for amici curiae Former Regulatory Officials in support of petitioners and vacatur.

Richard L. Revesz, Bethany A. Davis Noll, Denise A. Grab, and Jason A. Schwartz were on the brief for amicus curiae Institute for Policy Integrity at New York University School of Law in support of petitioners.

Jonathan Brightbill, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Jeffrey H. Wood, Acting Assistant Attorney General, Stephanie J. Talbert, Attorney, and Brian Doster, Assistant General Counsel, U.S. Environmental Protection Agency.

Shannon S. Broome argued the cause for intervenor Chemical Safety Advocacy Group, et al. With her on the brief were C. Frederick Beckner III, Justin A. Savage, Ryan C. Morris, Kurt A. Johnson, Charles H. Knauss, Peter Tolsdorf, Steven P. Lehotsky, Michael B. Schon, Leslie A. Hulse, and Richard S. Moskowitz.

Elizabeth B. Murrill, Solicitor General, Office of the Attorney General for the State of Louisiana, argued the cause for intervenor State of Louisiana. With her on the brief were Jeff Landry, Attorney General, Michelle M. White, Assistant Solicitor General, Leslie Rutledge, Attorney General, Office of the Attorney General for the State of Arkansas, Lee Rudofsky, Solicitor General, Nicholas J. Bronni, Deputy Solicitor General, Derek Schmidt, Attorney General, Office of the Attorney General for the State of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney General, Bryan C. Clark, Assistant Solicitor General, Mark Brnovich, Attorney General, Office of the Attorney General for the State of Arizona, Dominic E. Draye, Solicitor General, Pamela Jo Bondi, Attorney General, Office of the Attorney General for the State of Florida, Edward M. Wenger, Chief Deputy Solicitor General, Mike Hunter, Attorney General, Office of the Attorney General for the State of Oklahoma, Mithun Maninghani, Solicitor General, Ken Paxton, Attorney General, Office of the Attorney General of the State of Texas, Scott A. Keller, Solicitor General,Patrick Morrisey, Attorney General, Office o f the Attorney Gen eral for the Stateof West Virginia,Erica N. Peterson, Deputy Solicitor Genera l, S. Chad Meredith, Deputy General Counsel, Office of the Attorney General for th e Commonwealth of Ke ntucky, Alan Wilson, Attorney General, O ffice of the Attorne y General for the St ate of South Carolin a, James Emory Smith, Jr., Deputy Solicito r General, Sean Reyes, Attorney General, Of fice of the Attorney G eneral for the State o f Utah, Tyler R. Green, Solicitor General, Brad Schimel, Attorney General, Offic e of the Attorney Genera l for the State of Wisco nsin, and Misha Tseytlin, Solicitor General. Paul A. Martin, Chief Deputy Attorney General, Office of the Attorney General for the State of West Virginia, Harry J. Vorhoff, Assistant Attorney General, Office of the Attorney General for the State of Louisiana, and Jonathan L. Williams entered appearances.

Before: Rogers, Kavanaugh^* and Wilkins, Circuit Judges.

Opinion for the court filed Per Curiam.

Per Curiam:

906 F.3d 1053

This appeal presents the question whether the Environmental Protection Agency ("EPA") had authority under Sections 307(d)(7)(B) and 112(r)(7) of the Clean Air Act ("CAA"), 42 U.S.C. §§ 7607(d)(7)(B), 7412(r)(7), to delay the effective date of the Chemical Disaster Rule of January 13, 2017, for twenty months for the purpose of reconsideration, and, if so, whether it properly exercised that authority. We hold that where EPA has exercised its Section 7607(d)(7)(B) authority to delay the effectiveness of a final rule, it cannot avoid that statute’s express limitations by invoking general rulemaking authority under a different statutory provision. EPA’s action was arbitrary and capricious in any event. Accordingly, we vacate the Delay Rule of June 14, 2017.

I.

A.

In 1990, Congress amended the CAA, and addressed among other things multiple high-profile chemical accidents that harmed workers, local communities, and the environment. See 136 CONG. REC. S16,899, S16,926–27 (1990) (Conf. Rep.). Section 112(r) of the 1990 Amendments, "Prevention of Accidental Releases," provides that "[i]t shall be the objective of the regulations and programs authorized under this subsection to prevent the accidental release and to minimize the consequences of any such release of any [listed substance] or any other extremely hazardous substance." 42 U.S.C. § 7412(r)(1). "Accidental release" is defined as "an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source." Id. § 7412(r)(2)(A). Congress also established the Chemical Safety Board ("CSB") to investigate major accidental releases and issue reports to EPA "recommending measures to reduce the likelihood or the consequences of accidental releases and proposing corrective steps to make chemical [industrial processes] as safe and free from risk of injury as is possible." Id. § 7412(r)(6)(C)(ii). "Whenever the [CSB] submits a recommendation with respect to accidental releases to [EPA], the Administrator shall respond to such recommendation ... not later than 180 days after receipt," indicating whether EPA will "initiate a rulemaking or issue such orders as are necessary to implement the recommendation in full or in part, pursuant to any timetable contained in the recommendation." Id. § 7412(r)(6)(I). If the Administrator decides not to implement the CSB’s recommendation in whole or part, "including any variation from the schedule contained in the recommendation," the Administrator must provide a statement "setting forth the reasons for such determination." Id.

Section 7412(r)(7) authorizes EPA to "promulgate release prevention, detection, and correction requirements which may include monitoring, record-keeping, reporting, training, vapor recovery, secondary containment, and other design, equipment, work practice, and operational requirements." Id. § 7412(r)(7)(A). "Regulations promulgated pursuant to this subparagraph shall have an effective date, as determined by the Administrator, assuring compliance as expeditiously as practicable." Id. That section also requires EPA to "promulgate reasonable regulations and appropriate guidance to provide, to the greatest extent practicable, for the prevention and detection of accidental releases of regulated substances and for response to such releases by the owners or operators of the sources of such releases," and requires that such regulations "be applicable to a

906 F.3d 1054

stationary source 3 years after the date of promulgation." Id. § 7412(r)(7)(B)(i). These regulations must direct stationary sources to implement a Risk Management Plan ("RMP") to "detect and prevent or minimize accidental releases ... and to provide a prompt emergency...