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The Insider

As the Biden EPA weighs revising or repealing high-profile Trump-era rules, federal courts have issued a series of new rulings in key lawsuits on several of those policies, variously expanding or limiting the administration’s regulatory options on science, ozone limits and other issues.

The decisions come as the Biden administration is seeking stays of ongoing litigation over actions by the Trump EPA, with plans to consider which of those rules to rewrite or scrap entirely without the threat of imminent court rulings.

But one of those decisions appears to be a major boon to the Biden agenda, as a federal district judge on Jan. 27 held that the Trump administration’s rule governing EPA’s use of science -- a top target for repeal -- was unlawfully rushed into effect:

Judge Suspends EPA Science Rule, Teeing Up Quick Repeal By Biden
A federal judge has ruled that the Trump EPA unlawfully made its rule governing the agency’s use of science effective immediately rather than waiting 30 days as is required for most rulemakings, suspending the controversial rule and opening the door for Biden officials to repeal it and other measures that sought to take immediate effect.

The Jan. 27 ruling, by Chief Judge Brian Morris of the U.S. District Court for the District of Montana, finds that EPA’s science rule is substantive rather than procedural and that the agency lacked “good cause” to waive the Administrative Procedure Act’s (APA) mandate that all substantive rulemakings can take effect no earlier than 30 days after their publication in the Federal Register.

“EPA unlawfully made the Final Rule effective immediately on publication in the Federal Register . . . The Court declares, therefore, that the Final Rule is ineffective until 30 days from its January 6, 2021, date of publication in the Federal Register: February 5, 2021,” Morris writes.

The science rule requires EPA to give more weight to studies where the underlying dose-response data is available for validation, which environmentalists and science groups have argued will unduly restrict the agency’s use of pivotal health studies based on individual health data subject to privacy or ethical shields.

But by shifting the rule’s effective date into the future, the decision gives EPA the ability to postpone its implementation indefinitely under the APA, easing the path for an administrative repeal. And the same principle could also apply to four other policies the Trump administration put into effect without a 30-day wait: rules maintaining Obama-era national ambient air quality standards (NAAQS) for ozone and particulate matter; setting more-stringent mandates for cost-benefit analysis under the Clean Air Act; and establishing greenhouse gas limits for aircraft that environmentalists say would require little to no change in the sector’s emissions.

Also this week, the U.S. Court of Appeals for the District of Columbia Circuit overturned several elements of EPA’s 2018 rule implementing the ozone NAAQS, unsettling states’ plans to comply with the current standard:

D.C. Circuit Ruling Complicates States’ Efforts To Meet Ozone Standards
A federals appeals court is scrapping key provisions of EPA’s rule for how states should implement ozone national ambient air quality standards (NAAQS) including emissions trading and “contingency” air pollution control measures, creating major new complications for states that were already struggling with plans to meet the NAAQS.

In a Jan. 29 unanimous opinion for the U.S. Court of Appeals for the District of Columbia Circuit in Sierra Club, et al. v. EPA, written by Judge David Tatel on behalf of fellow Judges Gregory Katsas and Harry Edwards, Tatel says the agency’s current ozone implementation regulations, adopted in 2018, depart from the clear text of the Clean Air Act in some important respects, or are unreasonable interpretations of the law.

The ruling will complicate efforts by areas with persistently high ozone levels, such as Southern California, to meet NAAQS for ozone. It scraps various methods that EPA had said it would allow states to include in their state implementation plans (SIPs), which are emissions reduction strategy blueprints for attaining the ozone limits. The agency will now have to reevaluate its rules for states and Clean Air Act permit holders.

It will also set a precedent for how EPA implements future federal ozone standards, such as a potential Biden administration effort to tighten the limits and replace a Trump-era rulemaking that instead said the existing standards set in 2015 are sufficiently protective of human health as required by the air law.

Another D.C. Circuit ruling upholds an Obama-era rulemaking under the renewable fuel standard (RFS), denying a bid from biofuels makers to restore a mandate to blend their products into the fuel supply that EPA dropped in 2016 and teeing up another RFS question for the Biden administration:

D.C. Circuit Rejects Call To Force EPA Restoration Of 2016 RFS Biofuel Goal
The U.S. Court of Appeals for the District of Columbia Circuit has rejected biofuels producers’ request to force EPA to swiftly restore a biofuels blending target that the agency cut from the 2016 renewable fuel standard (RFS), although the eventual fate of the fuels volume is unclear and the Biden administration will have to resolve it.

In a short Jan. 27 per curiam order in Americans for Clean Energy, et al. v. EPA, D.C. Circuit Judges Judith Rogers, David Tatel and Patricia Millett reject biofuels’ groups request for the court to issue a writ of mandamus to enforce its 2017 remand in the case, which directed the agency to address problems with the 2016 RFS. The court instead requires EPA to report at 60-day intervals on its progress in responding to the remand.

In the 2017 ruling, the court found that the agency had wrongly relied on its “general waiver” authority to reduce the RFS’ ethanol blending target by 500 million gallons from levels otherwise required by statute for 2016. EPA invoked “inadequate domestic supply” to justify the waiver, but the court found EPA had confused “supply” with “demand” restrictions caused by bottlenecks in distribution of biofuels.

However, the new administration is hoping to head off any more unexpected court decisions by asking judges to freeze pending cases challenging EPA rules and rulemaking deadlines, so it can consider its path forward on both the lawsuits and the underlying actions under review:

EPA Asks DOJ To Seek Stays Of Litigation Challenging Agency Rules
EPA Acting General Counsel Melissa Hoffer is officially asking the Justice Department (DOJ) to seek judicial pauses in pending litigation challenging agency rules or seeking to establish a deadline for EPA regulation, in order to provide the Biden administration time to review a slew of lawsuits before deciding how to proceed.

In a Jan. 21 letter to Jean Williams and Bruce Gelber, deputy assistant attorneys general within DOJ’s Environment and Natural Resources Division, Hoffer says her request conforms with President Joe Biden’s “Executive Order [EO] on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”

The Jan. 20 order, which Hoffer references as the “Health and Environment” EO, directs the heads of all agencies to “immediately review all existing regulations, orders, guidance documents, policies and any other similar agency actions” taken during the entire Trump administration, starting on Jan. 20, 2017, “that are or may be inconsistent with or present obstacles to the policy” goals of the new order.

Hoffer says her letter “will confirm my request on behalf of the U.S. Environmental Protection Agency (EPA) that the U.S. Department of Justice (DOJ) seek and obtain abeyances or stays of proceedings in pending litigation seeking judicial review of any EPA regulation promulgated between January 20, 2017, and January 20, 2021, or seeking to establish a deadline for EPA to promulgate a regulation in connection with the subject of any such regulation, in order to provide an opportunity for new Agency leadership to review the underlying rule or matter.”