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Court Blocks EPA Effort To Suspend Obama-Era Methane Rule (pbs.org)
Michael Biesecker reports via PBS: A federal appeals court in Washington ruled Monday that the head of the Environmental Protection Agency overstepped his authority in trying to delay implementation of a new rule requiring oil and gas companies to monitor and reduce methane leaks. In a split decision, the three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit ordered the EPA to move forward with the Obama-era requirement that aims to reduce planet-warming emissions from oil and gas operations. EPA Administrator Scott Pruitt announced in April that he would delay by 90 days the deadline for oil and gas companies to follow the new rule, so that the agency could reconsider the measure. Last month, Pruitt announced he intended to extend the 90-day stay for two years. In a detailed 31-page ruling, the court disagreed with Pruitt's contention that industry groups had not had sufficient opportunity to comment before the 2016 rule was enacted. The judges also said Pruitt lacked the legal authority to delay the rule from taking effect.
Does the EPA go to court try to make the envirnment worse.
Imagine if every government threw out everything agreed by the last government, just to score political points.
Really Pruitt needs to be more professional here. Country before party.
Pruitt is trying to create a DEFACTO status quo bypassing the EPAs rules for review. He's making the decision FIRST, then implementing the process to make that decision SECOND.
He can't do that.
Imagine if an election board could simply decide to suspend an election while it decides how to secure the election from Russian hackers? Or Trump could simply decide to suspend implementation of any Congress passed law while he decides how it should be 'best' implmented.
It's similar to the Visa thing. Trump cannot change the laws beyond the limits Congress has set him. This is why the Supreme Court has done this weird thing of allowing the legal part of Trump's travel ban through while literally making the whole of the Executive branch liable for contempt of court if they follow it the non-legal bit. Normally Supremes would strike down the whole Executive order and President would rewrite it to comply, but Trump would just throw a tantrum, so they enjoined the Executive branch instead. Putting the grownups in charge.
If the EPA wants to delay enforcement then would not that be within their authority as an executive agency?
Not necessarily. There is a rule-making process which it must legally follow. The process is there to protect citizens from arbitrary enforcement of laws and rules. With all its flaws, the US is still a nation of laws, which even its regulatory agencies must follow. If you don't like the rules, you still have to follow the process to remove them. If you don't like the laws, you still have to follow the law-making process to undo them. Countries that don't follow law- or rule-making process have a name: they are called dictatorships.
I don't know whether delaying enforcement is within the legally required process or not, I'd guess that's why the court is stepping in.
Methane is odorless. Perhaps you were thinking of hydrogen sulfide?
“Common sense is not so common.” — Voltaire
Pruitt is trying to delay this for two years while he follows a process to change the rules. Two years. He has his department and its rules, and he has to follow those rules to make that change. Court has ruled correctly, this two year delay is nothing but a defacto cancelling of the rule. It's a Pruitt power grab.
If he wants his department rules to be easier, then he can go to Trump. If Trump tries to ease them beyond Executive branch powers, then courts will strike that down and he has to go to Congress. The court is what stops little emperors like Pruitt making their little empires.
Trump's travel ban is similar. Trump cannot simply ignore the Immigration and Nationality Act/1965 or the Constitution for 90 days while he reviews them. If he wants the law changed, he has to go to Congress, and propose the law change, and they have to get Senate to sign off on it, and it mustn't to violate the Constitution etc. etc. etc...
They have not ruled on the merits of that law change, only that he has to follow the law making processes. Or in fact the way they've done it, means the whole Executive branch is required to follow the law making processes.
moratorium? Yet they call it a ban.
From the decision:
Like you said, there's a process, and the court didn't think that the EPA was following it.
The methane rule, along with many other administrative regulations, are governed by the Administrative Procedure Act (the APA, for short). The APA is the law, enacted in 1946, that governs how administrative agencies of the federal government can propose and establish any regulation they are empowered to create. For rulemaking (writing or changing regulations), it requires notice, public participation, agency response and feedback, and a permanent record of the rulemaking activity itself. All of that had to be done for the methane rule to be adopted by the EPA. It was adopted, and Congress had a chance to overturn the regulation, and it decided not to (a vote to overturn the regulation failed in the Senate).
The Trump administration's EPA doesn't want to enforce the methane rule, but they have to now. It is the law. So what the EPA tried to do is stay it (prevent enforcement) while they went through the rulemaking process of trying to get rid of it. And various groups sued because the EPA did not have a legal basis to stay enforcement while the rule is being reconsidered. And the Court agreed. While the EPA could appeal this ruling, their possibility of success is slim. There aren't enough votes on the DC Circuit to overturn the panel opinion and rehear the case en banc, and the odds of the Supreme Court hearing the case are minimal. The opinion is a pretty straightforward application of the APA to the case.
So while the EPA is going through the rulemaking process to get rid of the methane rule, they will have to enforce it in the meanwhile, and it is not entirely clear that the result of a new rulemaking would be repeal of the methane rule, due to the notice, public participation, and comment parts of the rulemaking process.
President Obama would have been happy to enforce the methane rule, as would 51 US Senators in the current Congress, apparently. It's not a dick move to enact laws and regulations you believe in, no matter how misguided they may be. People have sincere differences of opinion on policy, and engaging in the legislative and administrative processes to change those policies are part of our democratic system. The real dick move was by Scott Pruitt, when he tried to stay enforcement of a regulation without having the legal authority to do so.
All the commenters here saying, "I don't get why the EPA can be stopped from deciding its own regulations, etc. etc." don't really understand how regulation works, I think.
When a department of the government issues a regulation, it has to do so with public comment, input, and published reasoning. That, by the way, is an admirable aspect of our country, and why we're not some third world banana republic. People would be thankful for this, I'd think.
When some new administration comes in, they can't just overturn something willy nilly because they feel like it. They have to go through the same process of showing why the rule should be overturned, delayed, stayed, etc.
Scott Pruitt of the EPA basically got marching orders from Trump to do anything possible to revoke this rulemaking, and the arguments in court showed how flimsy that was. In order to delay implementation of a regulation (which is tantamount to retracting it, for the amount of time it is delayed), there must be good reason like evidence was ignored, people were not allowed to comment timely, etc.
None of these was found to be the case, and as a result, the EPA cannot just revoke an order it lawfully issued under the proper process. It can change its mind, but it has to go through the same process.
We should be thanking the rule of law for saving us from the administration's madness.
Because the EPA has to follow the Administrative Procedure Act if it wants to NOT implement a rule it has already adopted. And the EPA didn't do so.
This ruling won't be overturned: not enough votes to overturn en banc, and it's not a case the Supremes will have interest in.
It won't get overturned on appeal. There aren't enough votes at the DC Circuit to overturn this opinion en banc, and I doubt the Supreme Court will want to hear it.
This is a case about the Administrative Procedure Act, about the rule of law. It is not about any lack of democracy. As the Court opinion pointed out, the EPA can engage in the rulemaking process to change or eliminate the rule it adopted. It just can't lawlessly fail to enforce the rule it adopted in the meanwhile.
This is governed by the Administrative Procedures Act, which has specific judicially-enforceable rules about the manner in which the agencies can make rules. Among the more mundane requirements of the APA are things like public notice-and-comment periods. More germanely to the instant case, is that if an agency has formally adopted a rule (with all the rigmarole that goes with it, the agency cannot just turn around and repeal it a good reason. And even if it does, it must go through some of the same procedures.
Part of the motivation for this process is practical: regulated industries ought to have stability in the rules and it's needlessly inefficient to be churning them all the time. That is to say, even if the rule is unfavorable to a particular company, it's better to be able to know and plan than to be facing constant uncertainty. At the same time, part of the motivation is political: Congress sought to limit the Executive branch as part of its prerogative -- a President of either party that can either instantly adopt or repeal new rules would upend the balance of power.
So yeah, the EPA doesn't have authority under the APA to start implementing something contrary to the formal rule that they have adopted.
No, the Court is ruling on the EPA failing to obey a law called the Administrative Procedure Act. That's the law that lets administrative agencies create regulations under the authority delegated to them by Congress. Those rules/regulations, when properly adopted under the procedures of the APA, then have the force of law, and are essentially laws themselves.
And under the APA, Congress granted jurisdiction to the Courts to review agency action on these rules. So the courts have nowhere overstepped their authority in this case. They issued a ruling on a current law: the methane rule was validly adopted by the EPA following the procedures of the APA. The only person who overstepped their authority was Scott Pruitt, current EPA administrator, who had no legal basis for issuing a stay of that rule.
Presidents don't serve more than 8 years. Any rule they (cause to be) enact(ed) will not be a rule they have to enforce. Not for all that long, anyway.
And you're completely wrong about this. Agency regulations are, for the most part, governed by the Administrative Procedure Act, the APA. Agencies, like the EPA, have to follow the procedures set out in the APA to write or change regulations they are empowered to create. It isn't at the whim of the current Administration, though administrations do have a lot of control over the process.
The methane rule was adopted by the EPA pursuant to the Clean Air Act, and followed the procedures of the APA for notice, public participation, and comment. It is a validly adopted regulation. It cannot be changed at the will of any administration - a change will require another rulemaking process under the APA, with notice, public participation, and comment. Which the Trump administration has started. That they can do.
But while that rulemaking process is under way, they have no legal basis to delay or stay implementation and enforcement of the rule that was adopted. That's what the case was about. Not about being able to change the rule, but about not enforcing the rule while it is being reconsidered. And the judges did not overstep their bounds at all, since the APA gives them jurisdiction to consider these kinds of disputes.
Well, Congress has the power to enact laws under the Constitution. This is how Congress allocated their power to unelected bureaucrats to write laws:
1. Congress enacted laws that delegated further rulemaking authority (with some guidance as to how to make those rules) to an agency, generally under the executive branch.
2. Congress enacted a law, the APA - the Administrative Procedure Act, that defines the rules and processes those agencies must follow to exercise their rulemaking authority. It lays out rules and procedures agencies have to follow, and rules that are adopted pursuant to those procedures then have the force of law. 3. Congress has also enacted other laws, allowing Congress to overturn a regulation on a simple majority vote expressing disapproval of that regulation, continuing to reserve the ability to undo those regulations.
So unelected bureaucrats have the power to write rules/regulations that have the force of law because Congress delegated that to them and let them do it.
As for regulators later being able to change the regulations, that's never been the issue. The judges noted that the administration can continue its rulemaking process to revise the methane rule. But what the administration cannot do is stay enforcement of the methane rule in the interim without a legal basis for doing so.
Wrong, unless you meant to write "absolute monarchy" instead.
Washington, Jefferson and the rest gave the courts a major role for a reason.
The question was never should they, but by how much.
As usual, regulations like these are mere Trojan Horses. By setting limits to unreasonably low levels, production could be made too expensive or even brought to a halt. That's the kind of lever it is. A Democrat Administration would undoubtedly be able to use this in the same way Obama used regulations on coal to essentially kill the industry, as he promised.
When Fascism comes to America, it will call itself Anti-Fascism, and tell you to give up your guns.
And oil and gas companies should be required to minimize methane leaks
Reducing leaks is an "easy win". It is cost effective, and can make a substantial difference. Delaying the implementation is stupid. But deciding if a regulation or law is stupid is NOT WHAT COURTS ARE FOR. The job of the judiciary is to rule on the legality. When courts start ruling on the merits, and doing the legislature's job, then the courts become politicized and lose their legitimacy.
Err... there are no senators in congress.
Are you sure about that AC? Wikipedia: The United States Congress is the bicameral legislature of the federal government of the United States consisting of two chambers: the Senate and the House of Representatives. ...
For those who think that Wikipedia is written by left-wing SJW's I will - very reluctantly - quote from Conservapedia: Congress (Congress of the United States) (a word derived from the Latin "congressum", from "congredior", meaning "to come together") is the term for the legislative body of the United States of America, composed of the House of Representatives and Senate. ...
Incidentally, I note with amusement that at the top of that Conservapedia page it says: "This article was last edited in 2014. Some of its information may be outdated" and that immediately following that definition of Congress is: "In the current 112th Congress, the House is controlled by the Republican Party while the Senate is controlled by the Democratic Party." Apparently the contributors to Conservapedia are less interested in updating Conservapedia than in adding news feed items like this currently on the main page: In the News. what the MSM isn't fully covering currently has as a first item "Unplug CNN - and Sesame Street, too. Those two organs are teaming up to spread Islamist propaganda directly to children. linking to ConservativeNewsAndViews
We really need more civics education in this country.
Federal environmental laws specifically state how the EPA is supposed to regulate. They can't just put in or take out whichever rules they want.
When you were a child, did your mother never teach you to clean up after yourself?
Well, companies have to do the same thing. And like you as a child, if they won't do it on their own then parents (government) is forced to intervene and require (regulate) them to do so.
Burning coal dumps megatons of sulfates and and ash and other pollutants into the atmosphere annually. Pollutants that are directly related to acidification of rainfall and as such our streams, rivers, lakes, and groundwater; that directly contribute to asthma and lung cancer and other health related issues; and, of course, to our carbon footprint.
So yes, power plants were required to install scrubbers and generally clean up their act. And yes, that contributes to the cost of doing business. But that is, like it or not, part of those costs, and we don't allow coal plants to indiscriminately pollute any more than we allow chemical companies to freely dump waste into the river upstream from your home.
So yes, when you factor in those costs, it makes coal more expensive. But other means of energy production (like drilling for gas) have their own regulations and corresponding expenses and coal would still be more expensive if all of those regulations were gone. Thus the market has decided to pursue gas-fired plants, in addition to renewables liked solar and wind.
Coal is dirty, dangerous, a nightmare to safely produce, and expensive as heck to ship (daily) from where it's produced to where it's consumed. (After which you have to deal with the byproducts.)
Coal powered America for a long time. So did horses and steam engines. But like the later, we have better solutions now, and its time for it to go.
Any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so.
You can't really back that assumption up.
It's not an assumption, it's an estimate based on my previous 10 years of studying the Supreme Court. So I'll back it up.
If the Supreme Court of the United States (not the "Supremes" you idiot) chooses to take this case, will you come back here and admit you didn't know what you were talking about?
If the Supreme Court Justices decide to take an interest in the case, I'll certainly have to reevaluate my opinion, but I don't see 4 votes for granting a cert petition. The opinion relies on settled administrative law. None of it is particularly controversial. And while Chief Justice Roberts has shown an interest in reshaping the Court's administrative law jurisprudence, much of that reshaping has more to do with limiting deference to agency decisions than with the other issues at play in this case. The questions that could be appealed would either be about whether the court had jurisdiction to hear the case, which has been settled law for the past 40 years (delaying a rule's effective date is tantamount to revoking or amending the rule, constituting a final agency action that can be reviewed by the court), or that the stay was lawful - a much harder thing to justify, since the statute the administration cites (42 U.S.C. 7607(d)(7)(B)) allows only a 90 day stay during reconsideration, and only under certain circumstances, far shorter than the two year stay the Trump administration wanted the put in place.
Justices Breyer, Sotomayor, Kagan, and Ginsburg would not vote to grant cert in this instance, and while Justices Roberts and Kennedy have doubts about the administrative state, it is more along questions of deference to agency decisions, not questions of statutory interpretation or judicial power to review agency action. I am not certain that even Justice Thomas, strict textualist that he is, would vote to grant cert in this case. You need four votes to grant cert, and 5 to overturn. And the justices can count - most won't vote to grant cert unless they think they can get the fifth vote to overturn the lower court decision.
But I could be wrong, and have been in the past. I don't think that's the case here, however.
They have taken up a wide variety of cases that challenge federal law, and this is certainly one that qualifies. On the other hand, if there is enough jurisprudence on the APA already they will let the lower court ruling stand.
There is an entire body of jurisprudence on the APA built up through the past 70 years that makes up most of administrative law.
Unless they find good reason that this rule may be overturned if the EPA overstepped its authority.
Except that wasn't what this case was about. No one in the case argued that the EPA overstepped its authority. The methane rule was promulgated under Section 111 of the Clean Air Act, which authorizes the EPA to issue technology based standards which apply to specific categories of stationary sources of air pollution. No one is challenging the methane rule on that basis, because the EPA does have the authority under the Clean Air Act to issue it.
The Clean Air and Clean Water Acts are very clear about what the EPA can do - capriciously adding items that some administrations consider pollutants like CO2 and NG may violate those Acts.
And here, the Clean Air Act was very clear. The oil and natural gas industry is a source category for which the EPA is required to issue standards of performance. Prior standards already in place covered the emission of volatile organic compounds (VOCs). The standard was updated to include methane. This was not a capricious addition: methane leaks very often coincide with leaks of VOCs that produce air toxics like benzene, toluene, ethylbenzene and xylene, and stopping methane leaks will prevent VOC leaks, and in general,
I don't see anywhere where the court ruled on whether the law was stupid or not, only that Pruitt lacked the legal authority to delay the rule from taking effect.
The EPA does have the authority to define certain penalties, but others are written into the Clean Air Act (CAA) itself. But even if the EPA decides not to enforce the rule itself, once the rule is in place, it can be enforced by others. Why?
Under 1990 amendments to the CAA, any person may file a civil action against any person, including the United States (EPA) for violations of emission standards or limitations, or violation of an order issued by the EPA or a state with respect to such a standard or limitation. Citizens may also file a civil action against the EPA Administrator for failing to perform its duties under the CAA, as well as intervene in an action led by the EPA or a state or local regulatory authority. Even I was not aware of this, so you are forgiven for your ignorance.
So even if the EPA doesn't want to enforce it, tough. If it doesn't, violators can still be sued, the EPA and the EPA administrator can be sued, and enforcement penalties can still be required under court order. A court can order the EPA to impose penalties, or as would likely be the case, the court would impose the appropriate penalties itself as part of its order. That's why the stay was important - without the stay, even if the EPA doesn't enforce it, others can.
It's not obvious to me that the rule will go away: that's the thing about the rulemaking process under the APA - you can influence the process, but it cannot be arbitrary and capricious. An agency can be swayed or not swayed by the comments presented, but it has to actually respond to them, and if it fails to do so, upon review, courts can say whether or not the rule adopted was reasonable or not. Whether the regulation is good or bad, it survived the rulemaking process, which means that to change it, the change has to go through the rulemaking process. A rewritten rule may be weaker, but I'm not certain that it would go away. Methane is really bad as a greenhouse gas, and much of the leak detection and prevention would already be required for VOC emission prevention.
President Obama was my state Senator before he was my State's Senator, before he became President. I have met the man (at our then local coffee and donut shop). I know that he would have preferred to enact more legislation. He knew the limits of executive orders and regulations, and it wasn't any surprise that executive orders were rescinded and that regulations were overturned. He did the same to his predecessor. But with a hostile Congress uninterested in working with him for 6 years of his presidency, he did what he thought he could through executive action and regulation, even though it might not last. And if President Trump faces a hostile Congress, he should do the same. A President should do what they think is right, and if that tests the limits of their constitutional authority, the other branches should slap the executive down. That's part of the design of our great system.
The only problem with anti-environmentalism as a response for bringing industry back is that it won't work.
Coal's biggest problem is the price of natural gas, which is cheaper, easier to use and move, cleaner burning, and less expensive to set up. Any issue with coal starts and ends there - it's just not economically competitive.
The methane rule, which is applicable to oil and natural gas wells, would prevent methane and VOC (volatile organic compound) emission. While methane is largely a greenhouse gas issue, VOCs do cause increased ozone, which causes smog, which has its own health costs, in addition to the toxic effects of VOCs. Even if the costs on those industries were reduced, the resulting increased health costs on individuals would swamp whatever gains to industry might be had. In addition to the fact that methane emission reduction also leads to increased natural gas recapture, and it is unclear that under a true cost-benefit analysis that the methane rule would still impose net costs. And that's true of most environmental regulation. They have had the effect of shifting jobs and industries from one place to another, but they don't kill industries. New jobs are often created in helping to comply with new environmental rules and regulations.
For other industry, and I'm guessing you mean manufacturing here, the biggest cost component is labor. Unless the price of labor is drastically lower, certain kinds of manufacturing will be done where it is cheaper. Where the biggest cost component of manufacturing industries isn't labor, it is technology, which leads to massively increased productivity per worker, and fewer jobs in manufacturing overall. Wages would have to drastically drop (or the US dollar would have to be drastically devalued) for labor to be priced more competitively on the international market. Manufacturing is turning out like agriculture in the U.S. -- requiring fewer and fewer workers for greater and greater productivity.
Changing environmental regulations will do little to bring industry back to America that has left. That isn't why they left in the first place.