ELR Citation: ELR 20250
No(s). 85-1747 (D.D.C. Jan 28, 1986)

The court rules that Office of Management and Budget (OMB) review, under Executive Order No. 12291, of proposed Environmental Protection Agency (EPA) rules implementing the Resource Conservation and Recovery Act (RCRA) must cease in time to allow EPA to meet statutory deadlines. The court first rules that it has jurisdiction to order OMB not to interfere with EPA's performance of its nondiscretionary duty under RCRA §3004(w) to promulgate underground storage tank regulations. After reviewing the timing of action on the regulations, including OMB's extension of its review past the statutory deadline for promulgation, the court holds that EPA violated its non-discretionary §3004(w) duty. The court declines to order EPA to follow the timetable proposed by plaintiffs, however, concluding that EPA's request for an additional two months is reasonable. The court goes on to observe that OMB lacks authority to cause an agency to violate its statutory deadlines. The Executive Order recognizes that the executive branch may not use its legitimate authority to supervise executive policymaking to undo the mandate of Congress and OMB itself concedes this. In addition, use of E.O. No. 12291 to delay congressionally determined deadlines raises concerns about separation of powers. The legislative history of the 1984 RCRA amendments indicates that Congress intended the new statutory deadlines to override OMB review schedules under the executive order. The court issues a declaratory judgment that OMB lacks authority to delay the promulgation of future rules called for by the 1984 RCRA amendments past their statutory deadlines by withholding its assent beyond those dates.

[Pleadings in this decision are digested at ELR PEND. LIT. 65863, 65872, and 65892.]

Counsel for Plaintiffs
Robert V. Percival, David J. Lennett
Environmental Defense Fund, Inc.
1616 P St. NW, Washington DC 20036
(202) 387-3500

Counsel for Defendants
F. Henry Habicht, II, Margaret N. Strand, Robert E. Steinberg, Barry S. Newman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2716