Energy & Environment

Court walks back order, won’t immediately require EPA to enforce chemical plant safety rule

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A federal court on Tuesday walked back its previous order that sought to force the Environmental Protection Agency (EPA) to immediately start enforcing a major Obama administration regulation on the safety of chemical plants and similar facilities.

The Court of Appeals for the District of Columbia Circuit issued its original order on Friday, after environmental groups and Democratic state attorneys general asked the judges to skip the traditional 52-day waiting period to enforce their Aug. 17 ruling, which found that the Trump administration improperly delayed the Obama-era regulation.

{mosads}But Tuesday afternoon the judges reversed that order, saying it had been made “inadvertently.” The Aug. 17 decision is still in place, but it will not take effect until Oct. 8.

Judges Judith Rogers and Robert Wilkins did not explain their brief order Friday accepting the litigants’ arguments. In the Tuesday notice rescinding Friday’s order, the judges asked the various parties in the litigation to submit briefs on whether or not to immediately enforce the decision.

The groups and attorneys general who brought the original case asked the court on Aug. 24 to skip the waiting period.

“Petitioners and the public have a strong interest in the court’s mandate issuing promptly, due to the serious and irreparable harm and imminent threats to public health and safety that EPA’s Delay Rule is causing,” they wrote.

The Obama administration’s EPA wrote the rule to try to prevent and mitigate chemical plant disasters, like the 2013 West, Texas, fertilizer plant explosion that killed 15. It beefed up requirements for disaster planning and for post-incident investigations, among other changes.

It was due to start taking effect in March 2017, but the Trump administration has delayed implementing it while it reconsiders major aspects of the rule. The EPA proposed earlier this year to eliminate some of the most substantial provisions, but that rollback has not been made final.

In its decision last month, the D.C. Circuit Court said the EPA didn’t follow the Clean Air Act in delaying the regulation.

“Because EPA has not engaged in reasoned decision-making, its promulgation of the delay rule is arbitrary and capricious,” the judges said.

After the Friday ruling that the EPA must start enforcing the rule, business groups and Republican attorneys general immediately asked the court to hold off, saying they weren’t given sufficient time to rebut the arguments by the environmental groups.

“The court never gave industry intervenors notice of its decision to grant petitioners’ motion before the running of this 10-day period and thereby violated Federal Rule of Appellate Procedure 27(a)(3)(A),” write the business groups, led by the U.S. Chamber of Commerce.

“The court should accordingly rescind the order and recall its mandate to give industry intervenors the opportunity to exercise their right to respond.”

The EPA said in its own brief response that it agrees with the business groups and wants the court to undo its order.

Updated 5:13 p.m.

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