EPA Must Address Emission Rules Delay

WASHINGTON (CN) - A federal judge shut down the Environmental Protection Agency's attempt to skirt review of its decision to postpone regulating hazardous air emissions.

Earlier this year the EPA promulgated two rules governing emissions from boilers and solid waste incineration, which applied to commercial and industrial operators. Dozens of companies intervened, challenging both rules in court.

In May, two days before the rules were to go into affect, the agency suspended their implementation, claiming authority under the Administrative Procedure Act to wait until judicial review was complete.

In his analysis of the case, U.S. District Judge Paul L. Friedman drew particular attention to EPA's decision to evoke the Administrative Procedure Act, noting that the agency cited it, rather than the Clean Water Act, because the former Act gave it more flexibility in dealing with the emissions rules.

However, when the Sierra Club challenged the EPA's delayed implementation, the agency sought dismissal under a provision of the Clean Air Act, which would divest the D.C. Circuit of jurisdiction over the Sierra Club complaint.

Friedman, asserting the court's jurisdiction, ruled that the EPA and interveners could not "attempt to navigate their way around judicial review" of the suspension.

The court applied Judge Patricia Wald's "duck test," which goes: "Whereas it looks like a duck, and whereas it walks like a duck, and whereas it quacks like a duck, we therefore hold that it is a duck."

In denying the EPA's motion for dismissal, Friedman said that since the EPA had originally invoked the Administrative Procedure Act and not the Clean Water Act, the delay would be viewed under the latter.

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