ELR Citation: 42 ELR 20008
No(s). 11-1278 (D.D.C. Jan 9, 2012) (Friedman, J.)

A district court vacated EPA's stay of two rules setting forth emission standards from boilers and commercial and industrial solid waste incineration units. EPA issued the rules on March 21, 2011, and shortly thereafter several parties filed petitions for review challenging the legal sufficiency of the rules. Two days before the rules were to go into effect, EPA published a "Delay Notice" in the Federal Register, staying the effective date of both rules to preserve the status quo until the proceedings for judicial review of these rules are completed or EPA completes its reconsideration of the rules, whichever is earlier. An environmental group then filed suit challenging the delay notice. The court agreed with EPA that it had the authority to issue the notice under the APA §705, which allows agencies to stay agency action pending judicial review. In addition, the notice did not constitute substantive rulemaking subject to notice and comment. Nevertheless, the notice was arbitrary and capricious. The standard for a stay at the agency level is the same as the standard for a stay of agency action by a court—the four-part preliminary injunction test—yet, EPA failed to employ or even mention this four-part test in issuing the notice. In addition, EPA previously has applied the four-part preliminary injunction test in its review of requests to stay prior agency actions, but it failed to provide a reasoned decision for its change of position here. And where, as here, EPA seeks to justify a stay of its rules pending judicial review, the Agency must articulate, at a minimum, a rational connection between its stay and the underlying litigation in the court of appeals, which it failed to do. The Agency cannot use §705 of the APA to stay the effectiveness of its rules in order to avoid the three-month limitation on stays under the CAA simply because litigation in the court of appeals happens to be pending.