May 19, 2014

Panel Holds Agencies Can Deny Rulemaking Petitions Based on Timing and Budget

Holland & Knight Regulatory Litigation Blog
Jessica L. Farmer

This week, a unanimous three-judge panel of the D.C. Circuit held that the EPA reasonably denied a petition to initiate rulemaking that would have considered whether to include coal mines on the list of stationary air pollutant sources regulated under the Clean Air Act.

Environmental advocacy groups brought the petition seeking to list coal mines as a category of stationary sources that emit air pollution. This would have required the EPA to establish New Source Performance Standards for coal mine emissions of methane and other pollutants. The EPA denied the petition explaining that its budget constraints forced it to focus on higher-priority regulatory actions such as greenhouse-gas emissions, but indicated that it was not making a determination of whether coal mines should be regulated.

WildEarth Guardians challenged the EPA's denial, relying heavily on Massachusetts v. EPA, 549 U.S. 497 (2007), and alleging that the Clean Air Act does not contain an express provision allowing the EPA to consider its available resources and conflicting regulatory priorities in deciding whether to create a rule or take regulatory action.

The court disagreed and explained that Massachusetts v. EPA did not obligate the EPA to pursue rulemaking. Rather, according to the court, the case plainly stated that the EPA can avoid taking action if it provides a reasonable explanation for its denial. The court noted that this case was similar to Defenders of Wildlife v. Gutierrez, 532 F.3d 913 (D.C. Cir. 2008), where the National Marine Fisheries Service denied a rulemaking petition and the court held that the agency's decision to focus its resources on a comprehensive strategy was reasonable.

The panel determined that the EPA's denial "easily passes muster under the 'extremely limited' and 'highly deferential' standard" governing denial of a rulemaking petition and that the EPA has the discretion to determine the timing and priorities of its regulatory agenda.

WildEarth Guardians v. EPA, No. 13-1212, __F.3d __ (D.C. Cir. 2014).

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