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D.C. Circuit Holds 2019 RMP Reconsideration Rule Challenges in Abeyance

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On May 15, 2020, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) ordered the consolidated challenges to the Environmental Protection Agency’s (“EPA” or “Agency”) final rule modifying the Clean Air Act’s (“CAA”) Risk Management Program (“RMP”) (“2019 Reconsideration Rule” or “Rule”) to be held in abeyance while the Agency considers administrative petitions for reconsideration of the Rule.

As background, in 2017 the EPA released a final rule amending the RMP regulation (“2017 RMP Amendments”).  The final rule included changes to the accident prevention program requirements, new emergency response requirements, and increased public availability of chemical hazard information.  After a series of delays and legal challenges, the D.C. Circuit Court of Appeals ordered the EPA to implement the final rule.  However, nearly three years after it adopted the 2017 RMP Amendments, the EPA adopted the 2019 Reconsideration Rule, which rescinds or modifies several of the provisions.  See TIP 2019-119 Final Rule Modifying Risk Management Program Amendments Signed – Emerging Issues.

In response to the 2019 Reconsideration Rule, a coalition of environmentalist, states, and a national trade union (the “Petitioners”), filed separate petitions for judicial review of the Rule in the D.C. Circuit in December and January 2020.  The petitions were consolidated into Air Alliance Houston v. EPA, No. 19-1260 (D.C. Cir.).

In February 2020, the Petitioners filed with the EPA three separate petitions seeking administrative reconsideration of the 2019 Reconsideration Rule.  The Petitioners argued, among other issues, that the EPA “substantially revised its rationale for rescinding most of the disaster-prevention measures at issue” and “provided new data and documents on which it relied.”  See Joint Motions, attached.  The reconsideration petitions asked the EPA to stay the effectiveness of the Rule pursuant to CAA Section 307(d)(7)(B), which allows the Agency or the court to stay a rule for up to three months during the reconsideration process.

In March 2020, the Petitioners filed two separate motions asking the D.C. Circuit to hold the case in abeya nce for six months in light of the pending administrative reconsideration petitions.  Both motions argued that an abeyance would promote judicial economy. For instance, if the EPA grants the reconsideration, there may be no need to continue litigating the challenge to the Rule.  Alternatively, if the Agency denies reconsideration, then the Petitioners will seek to consolidate the challenge to the Rule and the reconsideration action.  The EPA, along with industry groups and the U.S. Chamber of Commerce as movant-intervenors, opposed both motions.

On May 15, 2020, the D.C. Circuit granted the Petitioners’ motions to hold the consolidated challenges to the Rule in abeyance while the EPA considers the administrative petitions for reconsideration.  The court’s order does not state the basis for its decision and directs the parties to file motions to govern further proceedings by September 21, 2020.

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