833 F. Supp. 2d 9
D.D.C.2011Background
- Sierra Club filed suit challenging EPA's Delay Notice delaying the Boiler Rule and CISWI Rule under the APA, asserting three independent grounds.
- EPA issued a Delay Notice staying the rules' effective dates pending reconsideration or judicial review completion.
- The rules at issue were promulgated February 21, 2011, following a January 20, 2011 court order directing EPA to set standards.
- Sierra Club alleges lack of notice/comment, lack of statutory authority, and inadequate justification for the Delay Notice.
- The court previously denied EPA's dismissal motion for lack of jurisdiction and ordered supplemental briefings to address whether the Delay Notice is a rule requiring notice and comment and related jurisdictional questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Delay Notice is a rule requiring notice and comment. | Sierra Club: Delay Notice operates as an indefinite stay akin to a rule amendment. | EPA: Delay Notice is a procedural stay, not a substantive rule requiring notice and comment. | To be determined on supplemental briefing. |
| If Delay Notice is a rule, whether review belongs in the court of appeals under 42 U.S.C. § 7607(b)(1). | Sierra Club contends exclusive appellate review applies if the Delay Notice amends/rescinds the rules. | EPA argues the question may fall outside § 7607(b)(1) depending on characterization. | To be determined on supplemental briefing. |
| What authority supports requiring notice and comment before issuing the Delay Notice if it is not a rule? | Sierra Club relies on general rulemaking principles. | EPA asserts no such requirement applies. | To be determined on supplemental briefing. |
Key Cases Cited
- Environmental Defense Fund v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983) (discussed rulemaking requirements for suspensions/stays of regulations)
- NRDC v. Abraham, 355 F.3d 179 (2d Cir. 2004) (suspension/delay could be tantamount to amendment or revocation of a rule)
- Public Citizen v. Steed, 733 F.2d 93 (D.C. Cir. 1984) (suspension to preserve status quo; relevance to notice and comment)
- Council of S. Mountains, Inc. v. Donovan, 653 F.2d 573 (D.C. Cir. 1981) (considerations for temporary vs. permanent rule actions)
- NRDC v. U.S. EPA, 683 F.2d 752 (3d Cir. 1982) (discussion of rulemaking and timing implications)