833 F. Supp. 2d 11
D.D.C.2012Background
- Sierra Club sues EPA challenging EPA's Delay Notice staying Boiler Rule and CISWI Rule under the APA.
- Court had previously ordered EPA to promulgate Boiler Rule and CISWI Rule by Feb 21, 2011; delays followed after reconsideration requests.
- Delay Notice stayed effectiveness of both rules pending judicial review or reconsideration, invoked under 5 U.S.C. § 705 (APA).
- Petitions for review filed in D.C. Circuit; EPA asserted Stay under APA, not Clean Air Act, during reconsideration.
- Sierra Club asserts three challenges: lack of notice and comment, lack of authority, and arbitrary/capricious justification.
- Court holds EPA authority under § 705, but vacates Delay Notice as arbitrary and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| EPA had authority to issue Delay Notice under § 705? | Sierra Club argues no authority under the APA to stay rules pending review. | EPA argues Authority under § 705; CA Act does not bar APA stay. | EPA has § 705 authority; held but vacated for other defects. |
| Was notice and comment required for Delay Notice? | Delay Notice is a substantive rule requiring notice and comment. | Delay Notice is a temporary stay preserving status quo, not a rule; no notice and comment. | Delay Notice not subject to notice and comment requirements; EPA judgment reversed on other grounds. |
| Was the Delay Notice arbitrary and capricious? | Delay Notice failed to link to reconsideration, misused litigation context, ignored four-part test. | Reasons justify stay beyond three months pending reconsideration/litigation. | Delay Notice arbitrary and capricious; vacated and remanded. |
Key Cases Cited
- NRDC v. Abraham, 355 F.3d 179 (2d Cir. 2004) (altering effective date may amend or rescind a rule; informs why stays can be substantive)
- NRDC v. Reilly, 976 F.2d 36 (D.C. Cir. 1992) (EPA lacked authority to stay standards prior to 1990 amendments; context for stays)
- Public Serv. Co. of N.H., 1 E.A.D. 389 (N.H. 1977) (four-part test for stays under § 705)
- Gordon v. Holder, 632 F.3d 722 (D.C. Cir. 2011) (district court must articulate four-factor analysis for preliminary relief)
- Nken v. Holder, 556 U.S. 418 (U.S. 2009) (historic power to stay orders pending appeal; court-centered authority)
- Sampson v. Murray, 415 U.S. 61 (U.S. 1974) (stay power linked to broader stay principles)