DC Circuit Rejects Challenge to How EPA Interprets Court Rulings

WASHINGTON (CN) – The D.C. Circuit on Friday rejected a challenge a collection of energy industry groups brought to an EPA regulation that changed how the agency applies decisions from federal appeals courts.

The case can be traced to 2012, when the Sixth Circuit struck down an EPA ruling that treated a natural gas plant and several wells as a single source of pollution under the agency’s permitting rules.

In response to the ruling, the EPA sent out a directive to its regional offices ordering them not to apply the decision outside of the Sixth Circuit.

The National Environmental Development Association’s Clean Air Project (NEDACAP) challenged the directive in the D.C. Circuit, saying the EPA’s policy of applying different permitting requirements in different parts of the country violated the Clean Air Act and the agency’s own regulations.

The D.C. Circuit agreed, but the EPA quickly made a formal change to its regulations that stated it would apply only Supreme Court and D.C. Circuit decisions “uniformly.”

NEDACAP and other industry groups filed a petition for review with the DC Circuit, arguing federal law requires the EPA to apply its regulations consistently across the nation and develop a process for resolving discrepancies between different court orders.

But in a 20-page opinion released Friday, U.S. Circuit Judge Harry Edwards wrote the that forcing the EPA to apply every circuit court decision nationally could lead to absurd results and quickly changing laws.

“There is nothing in the statute to indicate that EPA is bound to change its rules nationwide each time a regional circuit court issues a decision that is at odds with an EPA rule,” Edwards wrote. “Were this the case, then the first court of appeals to address an issue would determine EPA’s policy nationwide. And that would make no sense because only the D.C. Circuit has jurisdiction to hear and decide cases involving ‘nationally applicable regulations’ or cases in which the action is ‘based on a determination of nationwide scope or effect.'”

Edwards determined the section of law the industry groups point to as prohibiting the EPA’s regulation does not even apply to “court-created inconsistencies,” but rather to the EPA administrator’s delegation of powers to subordinates.

Furthermore, Edwards wrote the EPA’s new regulations “reasonably fill the statutory gaps” in the law and as a result have earned the court’s deference.

The Carter appointee also downplayed the “parade of horribles” the industry groups insist would come with a collage of different court decisions pieced together across the country.

“If no party is able to overturn an inconsistency-creating decision through a petition for rehearing, en banc review, or certiorari to the Supreme Court, EPA obviously will be in a position to consider initiating a rule making procedure to resolve the conflict, or take other final agency action that has the force of law,” Edwards wrote. “Alternatively, a petitioner with standing may petition for rule making should EPA fail to initiate such a proceeding.”

NEDACAP did not immediately return a request for comment on the D.C. Circuit’s ruling.

A spokesperson for the EPA said the agency is “reviewing the decision.”

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