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Court Losses Stack Up for EPA
August 20, 2018
The Trump administration’s deregulatory agenda has run into obstacles with EPA suffering three court defeats over the past two weeks from challenges to its delay of the Waters of the U.S. (WOTUS) rule, its determination on the pesticide chlorpyrifos, and its decision to delay the Obama-era Risk Management Plan (RMP) regulation.
U.S. District Court for the South Carolina Judge Norton granted summary judgment to a coalition challenging EPA’s rule to
delay the effective date
of the Obama-era WOTUS definition for two years.
In January 2018, in
Department of Defense v. National Association of Manufacturers
, the Supreme Court sided with industries’ argument that the federal district courts should hear the first legal challenges to the WOTUS regulation, reversing the stay of the Sixth Circuit and remanding the case with instructions to dismiss for lack of jurisdiction.
Following the Supreme Court’s decision, EPA and the Corps published a final rule in the
Federal Register
in February 2018, announcing a new applicability date of February 6, 2020 for the WOTUS rule. The postponement in the applicability date to 2020 clarified the intent to “maintain the status quo” following the Supreme Court’s removal of the Sixth Circuit’s stay.
“By refusing to allow public comment and consider the merits of the WOTUS rule and the 1980s regulation, the agencies did not allow a ‘meaningful opportunity’ to comment,” Judge Norton wrote in the order.
As a result of the South Carolina decision, the Obama-era WOTUS definition is now operative in 26 states while the case is appealed: California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia and Washington. Injunctions of the WOTUS rule from district courts in North Dakota and Georgia means the Obama-era rule will not be enforced in the other 24 states.
Separately, a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit
held that
EPA acted arbitrarily and capriciously in its decision to delay implementation of the Clear Air Act RMP regulation for 20 months for the purpose of reconsideration.
The RMP program was updated under the Obama Administration primarily in response to the 2013 Texas fertilizer facility explosion. It mandated that chemical facilities comply with several new requirements to prevent future accidents.
President Trump’s Supreme Court nominee Brett Kavanaugh was assigned to the three-judge panel in the case, but he did not take part in the decision.
“Reading the plain text makes clear that Congress is seeking meaningful, prompt action by EPA to promote accident prevention. The record is full of this problem that these are extremely dangerous situations, people are continuing to be harmed. I don't see anything in the delay rule that says, 'We have evidence that these harms are not occurring,’” the panel stated.
Finally, the U.S. Court of Appeals for the Ninth Circuit
ruled that
EPA must revoke all tolerances and cancel all registrations for the pesticide chlorpyrifos within 60 days of the order. The appeals court said that there was “no justification for the EPA’s decision in its 2017 order to maintain a tolerance for chlorpyrifos in the face of scientific evidence that its residue on food causes neurodevelopmental damage to children.”
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