Independent Courts on Independence Day

Comment are off

By David Doniger, Natural Resources Defense Council

Barely a day after the New York Times reported on EPA Administrator Scott Pruitt’s “blazing start” at rolling back Obama-era health and environmental safeguards, Pruitt got his first comeuppance from America’s independent courts.

On the eve of our national holiday, the U.S. Court of Appeals for the D.C. Circuit slapped Pruitt down for violating the Clean Air Act by “staying” – yanking out of effect – EPA’s limits on leakage of climate-changing methane and other smog-forming and cancer-causing pollutants from oil and gas operations.

As the Washington Post put it, the court’s decision “could set back the Trump administration’s broad legal strategy for rolling back Obama-era rules.”

The ruling in Clean Air Council v. E. Scott Pruitt is the first court decision on Pruitt’s early attempts to rollback vital safeguards, and a complete victory for NRDC and our partners who challenged his stay of the methane rules.

Pruitt did his oil and gas industry buddies a favor by yanking those rules just before the June 3rd deadline for companies to complete their first leak monitoring surveys.  As he has on other occasions, he met with industry lobbyists and fellow-traveling state attorneys general – his former pals in attacking EPA – and shortly after delivered them exactly what they wanted.

Pruitt issued a 90-day stay of the rules, and two weeks later proposed to extend that stay for two more years while he mulls changes to repeal or neuter them.  The stay relieved the oil and gas companies of the obligation to find and fix their leaks, hurting people living near their operations, increasing smog in communities downwind, and adding to the global burden of climate pollution.

Pruitt proposed the two-year stay extension despite acknowledging that delaying the rule could “have a disproportionate effect on children.”

NRDC and partners immediately took Pruitt to court over the 90-day stay, and in less than a month, we won.  (If necessary, we’ll take him to court again over the two-year extension if Pruitt finalizes it.)

Pruitt often touts his respect for the “rule of law.”  But the court of appeals found Pruitt “lacked authority under the Clean Air Act to stay the rule,” and it called his actions “unreasonable” and “arbitrary and capricious.”

In brief, Pruitt tried to use the “reconsideration” provision of the Clean Air Act, which allows a three-month stay of a final rule if – and only if – parties demonstrate that the EPA administrator (in this case his predecessor Gina McCarthy) didn’t give them a fair chance to comment on the contents of the final rule.  Pruitt claimed to find four provisions on which oil and gas companies didn’t receive adequate notice.  He then stayed not just those four provisions, but the whole leak prevention program.

The court would have none of it.  As NRDC and our partners showed, “all of the issues Administrator Pruitt identified could have been, and actually were, raised (and extensively deliberated) during the comment period.”  Because no one had been deprived of the chance to comment, the court found that Pruitt lacked authority to issue a stay.

Excoriating Pruitt for the “flimsiness” of his arguments, the court ordered the leak prevention program back into effect.

This is Administrator Pruitt’s first court rebuke of his early actions to stay, suspend, or delay safeguards issued by his predecessor.  I listed eight examples in a recent post on Pruitt’s “Misrule of Law” – ranging from this methane rule to others concerning pesticides, ozone smog, chemical accidents, landfill emissions, and more – where challenges are pending or soon-to-be-pending before this court and others.  And similar moves by other agencies – Interior, Labor, Transportation, and others – are under court challenge too.

As I told the New York Times yesterday:  “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.”

America’s independent courts are going to insist on the rule of law.  To be sure, Pruitt and other Trump administration officials have the authority to change prior regulations.  But they will have to tear things down the same way they were built up, with final rules issued only after making proposals and allowing a full opportunity to comment, and only after giving a reasoned explanation based on the governing laws, sound science, and a compelling factual record.

No short cuts, Pruitt.  A good lesson for Independence Day.

Originally posted here.

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