Clean Air Council, et al. v. E. Scott Pruitt

Petitioners, a group of environmental

organizations, challenge the Environmental Protection

Agency’s decision to stay implementation of portions of a final

rule concerning methane and other greenhouse gas emissions.

For the reasons set forth in this opinion, we conclude that EPA

lacked authority under the Clean Air Act to stay the rule, and

we therefore grant petitioners’ motion to vacate the stay.

I.

In June 2016, EPA Administrator Gina McCarthy issued a

final rule establishing “new source performance standards” for

fugitive emissions of methane and other pollutants by the oil

and natural gas industries. 81 Fed. Reg. 35,824 (June 3, 2016).

3

The methane rule took effect on August 2, 2016, id., and

required regulated entities to conduct an “initial monitoring

survey” to identify leaks by June 3, 2017, 40 C.F.R.

§ 60.5397a(f).

After EPA published the rule, several industry groups—

including the American Petroleum Institute (API), the Texas

Oil and Gas Association (TXOGA), and the Independent

Petroleum Association of America (IPAA)—filed

administrative petitions seeking reconsideration under section

307(d)(7)(B) of the Clean Air Act (CAA). 42 U.S.C.

§ 7607(d)(7)(B); see also 82 Fed. Reg. 25,731 (June 5, 2017).

That provision sets forth the circumstances under which EPA

must reconsider a rule. It provides that “[i]f the person raising

an objection can demonstrate to the Administrator that [1] it

was impracticable to raise such objection within [the notice and

comment period] . . . and [2] if such objection is of central

relevance to the outcome of the rule, the Administrator shall

convene a proceeding for reconsideration of the rule . . . .” 42

U.S.C. § 7607(d)(7)(B) (emphasis added). The statute also

provides that the “effectiveness of the rule may be stayed

during such reconsideration, however, by the Administrator or

the court for a period not to exceed three months.” Id. The

industry associations argued that CAA section 307(d)(7)(B)

required EPA to reconsider the final rule because several of its

provisions “were not included in the proposed rule and . . . [they

were therefore unable] to raise an objection during the public

comment period.” See, e.g., API, Request for Administrative

Reconsideration of EPA’s Final Rule “Oil and Natural Gas

Sector: Emission Standards for New, Reconstructed, and

Modified Sources,” at 1 (Aug. 2, 2016) (“API Reconsideration

4

Request”). They also sought a stay “pending reconsideration.”

Id.

By letter dated April 18, 2017, the Administrator, now

Scott Pruitt, stated that EPA “[found] that the petitions have

raised at least one objection to the fugitive emissions

monitoring requirements” that warrants reconsideration “under

307(d)(7)(B) of the CAA.” Letter from E. Scott Pruitt to

Howard J. Feldman, Shannon S. Broome, James D. Elliott, &

Matt Hite, Convening a Proceeding for Reconsideration, at 2

(Apr. 18, 2017). Accordingly, the Administrator announced,

“EPA is convening a proceeding for reconsideration” of two

specific provisions of the methane rule. Id. The letter also

stated that “EPA intend[ed] to exercise its authority under CAA

section 307 to issue a 90-day stay of the compliance date” for

the fugitive emissions requirements. Id.

On June 5—just two days after the deadline for regulated

parties to conduct their first emissions surveys and begin

repairing leaks, see 40 C.F.R. § 60.5397a(f)—EPA published

a “[n]otice of reconsideration and partial stay” in the Federal

Register, 82 Fed. Reg. at 25,730. Relying on CAA section

307(d)(7)(B), EPA granted reconsideration on four aspects of

the methane rule: (1) the decision to regulate low-production

wells, (2) the process for proving compliance by “alternative

means,” (3) the requirement that a professional engineer certify

proper design of vent systems, and (4) the decision to exempt

pneumatic pumps from regulation only if a professional

engineer certified that it was “technically infeasible” to route

such pumps “to a control device or a process.” 82 Fed. Reg. at

25,731–32. In addition, the notice “stay[ed] the effectiveness

of the fugitive emissions requirements, the standards for

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pneumatic pumps at well sites, and the certification by a

professional engineer requirements” for 90 days “pending

reconsideration.” 82 Fed. Reg. at 25,732. The notice explained

that the stay had gone into effect on June 2, 2017—that is, three

days before the notice was published in the Federal Register.

82 Fed. Reg. at 25,731.

On June 16, EPA published a notice of proposed

rulemaking (NPRM) announcing its intention to extend the stay

“for two years” and to “look broadly at the entire 2016 Rule”

during “the reconsideration proceeding.” 82 Fed. Reg. 27,645

(June 16, 2017). Comments on that NPRM are due July 17, or

if any party requests a hearing, by August 9. Id.

After EPA suspended implementation of the methane rule,

six environmental groups—Environmental Defense Fund,

Natural Resources Defense Council, Environmental Integrity

Project, Earthworks, Clean Air Council, and Sierra Club—filed

in this court an “emergency motion for a stay or, in the

alternative, summary vacatur.” According to Environmental

Petitioners, EPA’s stay violates CAA section 307(d)(7)(B)

because “all of the issues Administrator Pruitt identified could

have been, and actually were, raised (and extensively

deliberated) during the comment period.” Environmental

Petitioners’ Mot. 5 (emphasis in original). EPA opposes the

motion, as do intervenors, a group of oil and gas associations

including API, IPAA, and TXOGA. Together, they argue that

we lack jurisdiction to review the stay, and that even if it were

justiciable, the stay is lawful. We consider these arguments in

turn.

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II.

We begin with jurisdiction. Both EPA and Industry

Intervenors argue that an agency’s decision to grant

reconsideration of a rule is unreviewable because it does not

constitute “final action” under 42 U.S.C. § 7607(b)(1). EPA

Opp. 8; Intervenors’ Opp. 6. Industry Intervenors argue that for

the same reason we lack jurisdiction to review the stay.

Intervenors’ Opp. 8.

It is true that an agency’s decision to grant a petition to

reconsider a regulation is not reviewable final agency action.

See Portland Cement Association v. EPA, 665 F.3d 177, 185

(D.C. Cir. 2011) (noting that review is available “if

reconsideration is denied” (emphasis added)). To be “final,”

agency action must “mark the consummation of the agency’s

decisionmaking process” and “be one by which rights or

obligations have been determined, or from which legal

consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–

78 (1997) (citations and internal quotation marks omitted). By

itself, EPA’s decision to grant reconsideration, which merely

begins a process that could culminate in no change to the rule,

fails this test.

The imposition of the stay, however, is an entirely different

matter. By staying the methane rule, EPA has not only

concluded that section 307(d)(7)(B) requires reconsideration,

but it has also suspended the rule’s compliance deadlines.

EPA’s stay, in other words, is essentially an order delaying the

rule’s effective date, and this court has held that such orders are

tantamount to amending or revoking a rule. As we explained in

a very similar situation, where an agency granted an application

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for interim relief from a safety standard while it reconsidered

that standard: “In effect, the Administrator has granted a

modification of the mandatory safety standard for the entire

period of time that the petition is pending. There is no

indication that the Secretary intends to reconsider this decision

or to vacate the grant of interim relief. Thus, the Secretary’s

decision represents the final agency position on this issue, has

the status of law, and has an immediate and direct effect on the

parties. Therefore, we have no difficulty concluding that the

Secretary has issued a final decision . . . .” International Union,

United Mine Workers of America v. Mine Safety & Health

Administration, 823 F.2d 608, 614–15 & n.5 (D.C. Cir. 1987)

(citation omitted); see also Environmental Defense Fund, Inc.

v. Gorsuch, 713 F.2d 802, 813 (D.C. Cir. 1983) (“[S]uspension

of the permit process . . . amounts to a suspension of the

effective date of regulation . . . and may be reviewed in the

court of appeals as the promulgation of a regulation.”); Council

of Southern Mountains, Inc. v. Donovan, 653 F.2d 573, 579

nn.26 & 28 (D.C. Cir. 1981) (rejecting the argument that the

court lacked jurisdiction to review an order “defer[ring] the

implementation of regulations”).

In addition to “mark[ing] the consummation of . . . [EPA’s]

decisionmaking process” with respect to the final rule’s

effective date, the stay also affects regulated parties’ “rights or

obligations.” Bennett, 520 U.S. at 178 (citation and internal

quotation marks omitted). Absent the stay, regulated entities

would have had to complete their initial monitoring surveys by

June 3 and repair any leaks within thirty days. See 40 C.F.R.

§ 60.5397a(f), (h). Failure to comply with these requirements

could have subjected oil and gas companies to civil penalties,

citizens’ suits, fines, and imprisonment. See 42 U.S.C.

8

§ 7413(b)-(d) (providing for civil and criminal penalties for

failure to comply with emissions rules); id. § 7604(a)

(authorizing citizens’ suits for alleged violations of emissions

standards); 40 C.F.R. § 19.4 (establishing the schedule of fines

for CAA violations). The stay—which EPA made retroactive

to one day before the June 3 compliance deadline—eliminates

that threat, see 82 Fed. Reg. at 25,731, and thus relieves

regulated parties of liability they would otherwise face.

The dissent draws a sharp distinction between the denial of

a stay, which would have required regulated entities to comply

with the rule, and the imposition of the stay, which erased that

obligation. As the dissent sees it, only forced compliance has

“obvious consequences” for regulated parties. Dissent at 5. But

this one-sided view of final agency action ignores that, by

staying the rule’s effective date and its compliance duties, EPA

has determined “rights or obligations . . . from which legal

consequences will flow.” Bennett, 520 U.S. at 178. The

dissent’s view is akin to saying that incurring a debt has legal

consequences, but forgiving one does not. A debtor would beg

to differ.

The dissent also stresses that EPA’s proceedings

concerning the methane rule are ongoing. Dissent at 3; see 82

Fed. Reg. at 27,645; 82 Fed Reg. 27,641 (June 16, 2017). But

as we have explained, “the applicable test is not whether there

are further administrative proceedings available, but rather

whether the impact of the order is sufficiently final to warrant

review in the context of the particular case.” Friedman v. FAA,

841 F.3d 537, 542 (D.C. Cir. 2016) (quoting Environmental

Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 591 (D.C.

Cir. 1971)). Here, because the stay relieves regulated parties of

9

any obligation to meet the June 3 deadline—indeed EPA has

proposed to extend the stay for years, see 82 Fed. Reg. at

27,645—the “order is sufficiently final to warrant review,”

Friedman, 841 F.3d at 542. Cf. Ciba-Geigy Corp. v. EPA, 801

F.2d 430, 436 (D.C. Cir. 1986) (“Once the agency publicly

articulates an unequivocal position . . . and expects regulated

entities to alter their primary conduct to conform to that

position, the agency has voluntarily relinquished the benefit of

postponed judicial review.”).

EPA’s argument that courts have no authority to review

CAA section 307(d)(7)(B) stays is also at odds with the

statute’s language. Section 307(d)(7)(B) authorizes not only

the Administrator, but also courts to stay a final rule. 42 U.S.C.

§ 7607(d)(7)(B) (authorizing “the Administrator or the court”

to issue a three-month stay). Given that Congress granted this

court the power to enter a stay, it seems quite anomalous that it

did not also confer upon us the lesser power to review the

Administrator’s decision to issue a stay.

Indeed, EPA’s reading would have the perverse result of

empowering this court to act when the agency denies a stay but

not when it chooses to grant one. Under section 307(d)(7)(B),

if EPA had granted reconsideration but declined to impose a

stay, the industry groups could have come to this court seeking

a stay. See Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d

544, 558 (D.C. Cir. 2015) (declining to grant a stay during the

pendency of a reconsideration proceeding because petitioners

had failed to demonstrate irreparable harm). Yet, in EPA’s

view, where, as here, it grants reconsideration and imposes a

stay, we have no power to hear the case. Nothing in section

307—or any other provision cited by the parties or the

10

dissent—suggests that this court’s jurisdiction turns on whether

EPA grants as opposed to denies a stay.

EPA and Industry Intervenors argue that Environmental

Petitioners’ motion amounts to a collateral attack on the

underlying reconsideration proceeding. See also Dissent at 4.

But CAA section 307(d)(7)(B) expressly links EPA’s power to

stay a final rule to the two requirements for mandatory

reconsideration, i.e., that it was “impracticable to raise” an

objection during the public comment period and the objection

is “of central relevance to the outcome of the rule.” Only when

these two conditions are met does the statute authorize the

Administrator to stay a lawfully promulgated final rule.

Accordingly, to determine whether the stay was lawful—that

is, to assess EPA’s final action—we must consider whether the

agency met the statutory requirements for reconsideration. In

other words, although absent a stay we would have no authority

to review the agency’s decision to grant reconsideration,

because EPA chose to impose a stay suspending the rule’s

compliance deadlines, we must review its reconsideration

decision to determine whether the stay was authorized under

section 307(d)(7)(B).

III.

Environmental Petitioners seek two types of relief: a

“judicial stay” of EPA’s administrative stay, and in the

alternative, “summary disposition and vacatur” of EPA’s stay

“because the stay is clearly unlawful.” Environmental

Petitioners’ Mot. 1. To consider the former, we would have to

assess Environmental Petitioners’ motion under the four-factor

standard for a stay pending judicial review: “(1) whether the

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stay applicant has made a strong showing that he is likely to

succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance of the

stay will substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies.” Nken v.

Holder, 556 U.S. 418, 434 (2009) (citation omitted).

For reasons explained below, however, we agree with

Environmental Petitioners that the 90-day stay was

unauthorized by section 307(d)(7)(B) and was thus

unreasonable. Accordingly, we have no need to consider the

criteria for a stay pending judicial review. Cf. United States

Association of Reptile Keepers, Inc. v. Zinke, 852 F.3d 1131,

1135 (D.C. Cir. 2017) (“When . . . the ruling under review rests

solely on a premise as to the applicable rule of law, and the

facts are established or of no controlling relevance, we may

resolve the merits even though the appeal is from the entry of

a preliminary injunction.” (citation and internal quotation

marks omitted)). We shall therefore vacate the stay as

“arbitrary, capricious, [and] in excess of statutory . . .

authority.” 42 U.S.C. § 7607(d)(9)(A), (C).

A.

Defending the stay, EPA repeatedly invokes its “broad

discretion” to reconsider its own rules. EPA Opp. 6. Agencies

obviously have broad discretion to reconsider a regulation at

any time. To do so, however, they must comply with the

Administrative Procedure Act (APA), including its

requirements for notice and comment. 5 U.S.C. § 553; see

Perez v. Mortgage Bankers Association, 135 S. Ct. 1199, 1206

(2015) (“[T]he D.C. Circuit correctly read § 1 of the APA to

12

mandate that agencies use the same procedures when they

amend or repeal a rule as they used to issue the rule in the first

instance.”). As we have explained, “an agency issuing

a legislative rule is itself bound by the rule until that rule is

amended or revoked” and “may not alter [such a rule]

without notice and comment.” National Family Planning and

Reproductive Health Association, Inc. v. Sullivan, 979 F.2d

227, 234 (D.C. Cir. 1992).

EPA argues that it nonetheless has “inherent authority” to

“issue a brief stay” of a final rule—that is, not to enforce a

lawfully issued final rule—while it reconsiders it. See EPA

Opp. 6, 10, 13. This argument suffers from two fundamental

flaws.

First, EPA cites nothing for the proposition that it has such

authority, and for good reason: as we have made clear, it is

“axiomatic” that “administrative agencies may act only

pursuant to authority delegated to them by Congress.” Verizon

v. FCC, 740 F.3d 623, 632 (D.C. Cir. 2014) (alteration and

citations omitted); see Natural Resources Defense Council v.

Abraham, 355 F.3d 179, 202 (2d Cir. 2004) (rejecting the

contention that the Department of Energy had “inherent power”

to suspend a duly promulgated rule where no statute conferred

such authority and contrasting the Energy Policy and

Conservation Act with the reconsideration provision in the

Clean Air Act at 42 U.S.C. § 7607(d)(7)(B)). Accordingly,

EPA must point to something in either the Clean Air Act or the

APA that gives it authority to stay the methane rule, and as we

explain below, the only provision it cites—CAA section

307(d)(7)(B)—confers no such authority.

13

Second, when EPA granted reconsideration and imposed

the stay of the methane rule, it did not rely on its so-called

inherent authority. See Securities & Exchange Commission v.

Chenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing

court . . . must judge the propriety of [agency] action solely by

the grounds invoked by the agency” when it acted). Instead,

EPA expressly acted “pursuant to section 307(d)(7)(B) of the

CAA,” 82 Fed. Reg. at 25,732, which clearly delineates when

stays are authorized. As noted above, that section empowers

EPA to stay a final rule if a petitioner demonstrates

impracticability and central relevance, the two requirements for

mandatory reconsideration.

EPA insists that “the statutory text [of section 307] suggests

that Congress did not intend to cabin EPA’s authority to issue

a stay to only those circumstances where EPA is mandated to

convene reconsideration proceedings . . . .” EPA Opp. 12

(emphasis in original). The language of section 307(d)(7)(B) is

to the contrary: it authorizes the agency to grant a stay during

“such reconsideration,” a term that quite obviously refers back

to the reconsideration that EPA “shall” undertake when

someone presents an objection of “central relevance” that was

“impracticable” to raise during the period for public comment.

42 U.S.C. § 7607(d)(7)(b).

B.

Under CAA section 307(d)(7)(B), then, the stay EPA

imposed is lawful only if reconsideration was mandatory.

Accordingly, the question before us is whether the industry

groups that sought a stay of the methane rule met the two

requirements for mandatory reconsideration.

14

The parties disagree about the appropriate standard of

review for considering this issue. EPA argues that its view of

whether it was “impracticable” to object during the notice and

comment period is subject to arbitrary and capricious review.

See EPA Opp. 5. For their part, Environmental Petitioners

argue that “[l]imited deference on these notice questions makes

sense” because “EPA has no greater expertise than this [c]ourt

in determining whether a certain issue was impracticable to

raise during the comment period.” Environmental Petitioners’

Reply 7 (internal quotation marks omitted). We need not

resolve this dispute, however, because EPA’s decision to stay

the methane rule was arbitrary and capricious—that is,

unlawful even under the more deferential standard.

We begin—and ultimately end—with impracticability.

Environmental Petitioners and EPA agree that this issue turns

on whether industry groups had an opportunity to raise their

objections during the comment period, which in turn depends

on whether the NPRM provided adequate notice of the final

methane rule. This case hinges, then, on whether the final rule

was a logical outgrowth of the NPRM. A final rule is the

“logical outgrowth” of a proposed rule if “interested parties

should have anticipated that the change was possible, and thus

reasonably should have filed their comments on the subject

during the notice-and-comment period.” CSX Transportation,

Inc. v. Surface Transportation Board, 584 F.3d 1076, 1080

(D.C. Cir. 2009) (citation and internal quotation marks

omitted). A final rule “fails the logical outgrowth test” if

“interested parties would have had to divine the agency’s

unspoken thoughts, because the final rule was surprisingly

distant from the proposed rule.” Id. (citations and alterations

omitted).

15

EPA granted reconsideration and stayed the emissions

standards on four grounds: (1) industry groups had no

opportunity to object to provisions concerning “low production

well sites,” (2) the final rule included a process for

demonstrating “alternative means” of compliance that was not

in the NPRM, (3) without adequate notice or consideration of

costs, the final rule required “certification by a professional

engineer” that regulated entities had a proper closed vent

system, and (4) without adequate notice, the final rule

predicated an exemption from regulation for “well site

pneumatic pumps” on a professional engineer’s certification

that “it is technically infeasible to route the pneumatic pump to

a control device or a process.” 82 Fed. Reg. at 25,731–32. An

examination of the record demonstrates that each of these

statements is inaccurate and thus unreasonable.

Low-Production Wells

The final rule subjects low-production wells to fugitive

emissions requirements. 81 Fed. Reg. at 35,856. After EPA

promulgated the rule, industry groups petitioned for

reconsideration, arguing that the agency should have exempted

such wells from regulation. See, e.g., API Reconsideration

Request, at 12. One group, IPAA, also argued that the lowproduction

well provision conflicted with EPA’s definition of

when an existing well site has been “modifi[ed].” IPAA,

Request for Administrative Reconsideration, at 6 (Aug. 2,

2016) (“IPAA Reconsideration Request”).

When EPA granted reconsideration and imposed the stay,

however, it invoked a wholly different rationale: acting

pursuant to CAA section 307(d)(7)(B), EPA concluded that

16

“the final rule differs significantly from what was proposed in

that it requires these well sites to comply with the fugitive

emissions requirements based on information and [a] rationale

not presented for public comment during the proposal stage.”

82 Fed. Reg. 25,731. EPA, in other words, justified the stay on

the ground that the final rule failed the logical outgrowth test.

Although it is true that the NPRM for the final methane rule

proposed to exclude low-production well sites, EPA and

Industry Intervenors ignore the fact that the notice went on to

solicit comment on whether such an exclusion would be

warranted. The NPRM states: “To more fully evaluate the

exclusion, we solicit comment on the air emissions associated

with low production wells . . . . [W]e solicit comment on the

relationship between production and fugitive emissions over

time.” 80 Fed. Reg. 56,639 (Sept. 18, 2015). The NPRM also

states that EPA “solicit[s] comment on whether [it] should

include low production well sites for fugitive emissions and if

these types of well sites are not excluded, should they have a

less frequent monitoring requirement.” Id. (emphasis added).

Many regulated entities responded with comments,

including the industry groups that later sought reconsideration.

See, e.g., API, Comments on EPA’s NSPS for the Oil and

Natural Gas Sector, at 103 (Dec. 4, 2015) (“API Comments”).

API, for instance, submitted extensive comments on lowproduction

wells, noting its support for an exemption and

clarifying that “fugitive emissions [from such wells] do not

correlate to production.” Id.

Responding to these comments in the final rule, EPA

explained that it had decided not to exempt low-production

17

wells because, among other reasons, “[i]n discussions with us,

stakeholders indicated that well site fugitive emissions are not

correlated with levels of production, but rather based on the

number of pieces of equipment and components.” 81 Fed. Reg.

at 35,856. The final rule thus responded directly to comments

and information EPA now claims it was impracticable for

industry groups to have presented.

Perhaps sensing the flimsiness of its claim that regulated

entities had no opportunity to comment on low-production

wells, EPA argues that the stay was also warranted because the

low-production well provision is inconsistent with the rule’s

definition of well “modification.” EPA Opp. 17–18. As noted

above, this was one of IPAA’s arguments for reconsideration.

See supra 15. It was not, however, the rationale on which EPA

relied when it granted reconsideration and stayed the rule. EPA

cannot now justify its action on a rationale it failed to invoke

when it imposed the stay. See Chenery, 332 U.S. at 196.

Alternative Means of Compliance

The final rule permits regulated entities to demonstrate that

they comply with emissions regulations by alternative means,

and thus, ought not be subject to the rule. Specifically, the rule

provides that regulated entities may “submit an application

requesting that the EPA approve certain state requirement [sic]

as ‘alternative means of emission limitations’ under the

NSPS . . . .” 81 Fed. Reg. at 35,871. The rule then lays out the

process for filing such applications. Id.; see also 40 C.F.R.

§ 60.5398a.

18

After the rule was promulgated, TXOGA requested

reconsideration of the process “for determining State

Equivalency,” i.e., the alternative-means process.

Administrative Petition for Reconsideration by the Texas Oil

and Gas Association, No. EPA-HQ-OAR-2010-0505, at 2–3

(Aug. 2, 2016). EPA granted this request and stayed the rule on

the ground that the alternative-means “process and criteria

were included in the [final] 2016 Rule without having been

proposed for notice and comment.” 82 Fed. Reg. at 25,731.

In the NPRM, however, EPA expressly solicited

“comments on criteria we can use to determine whether and

under what conditions all new or modified well sites operating

under corporate fugitive monitoring programs can be deemed

to be meeting the equivalent of the NSPS standards . . . .” 80

Fed. Reg. at 56,638. The NPRM continued: “We also solicit

comment on how to address enforceability of such alternative

approaches . . . .” Id. (emphasis added). In response, industry

groups commented on the issue, and API specifically requested

a “streamlined approval process” for deeming regulated

entities compliant by alternative means. API Comments at 138.

The final rule adopted just such a process.

Here, too, the final rule was a logical outgrowth of the

NPRM. No regulated entity had to “divine the agency’s

unspoken thoughts,” CSX Transportation, 584 F.3d at 1080

(alteration omitted), in order to comment on the “alternative

means” approval process. To the contrary, we know that

affected parties anticipated the final rule because they

expressly requested a streamlined approval process and

commented on its contours.

19

Vent System Certification

The final rule requires regulated entities to obtain

“certification by a qualified professional engineer [PE] that the

closed vent system is properly designed . . . .” 81 Fed. Reg. at

35,871. API sought reconsideration on the grounds that “[t]he

provisions [for] PE certification were not included in the

proposed rule” and API was therefore unable “to raise an

objection during the public comment period.” API

Reconsideration Request, at 1. Agreeing with API, EPA

granted reconsideration because the agency “had not analyzed

the costs associated with the PE certification requirement”

before promulgating the rule, making it “impracticable for

petitioners to provide meaningful comments during the

comment period on whether the improved environmental

performance this requirement may achieve justifies the

associated costs and other compliance burden[s].” 82 Fed.

Reg. at 25,732.

Yet again, even a brief scan of the record demonstrates the

inaccuracy of EPA’s statements. The NPRM “request[s]

comment as to whether [EPA] should specify criteria by which

the PE verifies that the closed vent system is designed to

accommodate all streams routed to the facility’s control

system . . . .” 80 Fed. Reg. at 56,649. In the very next line, the

NPRM “request[s] comment as to what types of cost-effective

pressure monitoring systems can be utilized to ensure” proper

design of closed vent systems. Id. The NPRM also includes a

lengthy discussion of the “costs and benefits” of the rule. Id. at

56,596–97.

20

In response, industry groups submitted many comments on

the PE certification requirement. API itself commented that

requiring a PE to review vent system design was “unnecessary”

because “[o]il and natural gas company engineering staff . . .

are able to design systems effectively.” API Comments at 48–

49. API also expressed concern about the burden the PE

requirement would impose on regulated parties, id. at 49, and

argued that the certification requirement was an effort to shift

the cost of enforcement from EPA to the industry, id. at 48.

Separately, IPAA commented that the entire rule’s “increased

record-keeping and reporting requirements” imposed

unreasonable costs on regulated parties. IPAA & American

Exploration & Production Council, Comments for Three

Regulatory Proposals, at 28 (Dec. 4, 2015).

These comments demonstrate that industry groups had an

opportunity to express their views on PE certification of vent

systems, including the rule’s costs. As noted above, the NPRM

not only sought comment on types of “cost-effective” measures

for vent system design, 80 Fed. Reg. at 56,649, but it also

included an analysis of the entire rule’s costs and benefits, id.

at 56,596–97. Had commenters been concerned about the cost

of PE certification of vent systems, they could have argued that

the cost-benefit analysis failed to address that specific

provision of the regulation. It was thus entirely practicable for

industry groups to lodge their objections to the PE certification

requirement during the comment period.

Pneumatic Pumps

Finally, the 2016 rule exempts well-site pneumatic pumps

from the final rule so long as a professional engineer has

21

certified that it is “technically infeasible to capture and route

pneumatic pump emissions to a control device or process . . . .”

81 Fed. Reg. at 35,850. The rule explained that this exemption

would not apply to “entirely new” facilities because

“circumstances that could otherwise make control of a

pneumatic pump technically infeasible at an existing location

can be addressed in the site’s design and construction.” Id.

In its petition for reconsideration, IPAA objected to the idea

that a professional engineer must certify “technical

infeasibility,” arguing that the final rule “added a variety of

requirements associated with ‘technical infeasibility’ that were

not purposed [sic] or even mentioned in the proposed rule.”

IPAA Reconsideration Request at 7. API mounted a similar

objection to the pneumatic pump exemption, arguing that it had

“no opportunity to comment” on the distinction between new

construction sites (known as “greenfield” sites) and older

emissions sites (“brownfield” sites). See API Reconsideration

Request at 2.

Embracing these arguments, EPA granted reconsideration

on the ground that it had never “propose[d] or otherwise

suggest[ed] exempting well site pneumatic pumps from

emission control based on such [PE] certification.” 82 Fed.

Reg. at 25,732. EPA added that the specific details of the

exemption, including the distinction between old and new sites,

“were included . . . without having been proposed for notice

and comment.” Id.

After proposing that a professional engineer certify

regulated entities’ closed vent systems, the NPRM states that

operators of oil and natural gas facilities must also “connect the

22

pneumatic pump affected facility through a closed vent system

. . . .” 80 Fed. Reg. at 56,649, 56,666. In response, API

submitted extensive comments on the challenges of connecting

pneumatic pumps to “an existing control device.” API

Comments at 78. API explained that given the design of many

existing sites, the pneumatic pump requirement was “not

technically feasible.” Id. Accordingly, API expressly requested

that EPA “provide [an] exclusion in the rule such that routing

a pneumatic pump affected source to an existing control device

or closed vent system is not required if it is not technically

feasible . . . .” Id. (emphasis added). The comment continued:

“If needed, EPA could provide provisions in the rule for an

operator to make an engineering determination that an existing

control device cannot technically handle the additional gas

from a pneumatic pump affected source exhaust, document this

determination, and make such a determination available for

inspection by EPA or other competent authority.” Id. (emphasis

added). API, in other words, proposed precisely the technical

infeasibility language EPA adopted in the final rule, suggested

that an engineer certify technical infeasibility, and justified its

proposed exemption based on a lengthy description of why

existing sites were not designed to “handle” EPA’s proposal.

Id.

Given this, it was perfectly logical for EPA to adopt an

exception to its proposed rule that requires a professional

engineer’s certification of infeasibility, and to limit that

exception to sites that had already been designed in a way that

made compliance infeasible. The record thus belies EPA’s

claim that no industry group had an opportunity to comment on

the “scope and parameters” of the pneumatic pump exemption.

EPA Opp. 22.

23

IV.

The administrative record thus makes clear that industry

groups had ample opportunity to comment on all four issues on

which EPA granted reconsideration, and indeed, that in several

instances the agency incorporated those comments directly into

the final rule. Because it was thus not “impracticable” for

industry groups to have raised such objections during the notice

and comment period, CAA section 307(d)(7)(B) did not require

reconsideration and did not authorize the stay. EPA’s decision

to impose a stay, in other words, was “arbitrary, capricious,

[and] . . . in excess of [its] . . . statutory . . . authority.” 42

U.S.C. § 7607(d)(9)(A), (C). We shall therefore grant

Environmental Petitioners’ motion to vacate the stay.

We emphasize, however, that nothing in this opinion in any

way limits EPA’s authority to reconsider the final rule and to

proceed with its June 16 NPRM. Although EPA had no section

307(d)(7)(B) obligation to reconsider the methane rule, it is

free to do so as long as “the new policy is permissible under

the statute . . , there are good reasons for it, and . . . the agency

believes it to be better.” FCC v. Fox Television Stations, Inc.,

556 U.S. 502, 515 (2009).

So Ordered.

BROWN, Circuit Judge, dissenting: My colleagues are

quick to claim we have jurisdiction to hear this motion, but I

disagree. While we presumptively possess jurisdiction over

“final agency action,” the Administrative Procedure Act

deprives us of jurisdiction when, inter alia, “agency action is

committed to agency discretion by law.” See 5 U.S.C. §

701(a)(2). The Court acknowledges EPA’s decision to grant

reconsideration “is not reviewable final agency action” as it

“merely begins a process that could culminate in no change to

the rule.” Op. 6. The Court further claims the Clean Air Act

provision at issue here “expressly links EPA’s power to stay a

final rule to the two requirements for mandatory

reconsideration . . . .” Id. at 10. Indeed it does. See 42

U.S.C. § 7607(d)(7)(B) (“Such reconsideration shall not

postpone the effectiveness of the rule. The effectiveness of

the rule may be stayed during such reconsideration, however,

by the Administrator or the court for a period not to exceed

three months.”).1 Nevertheless, the Court concludes EPA’s

1 It is far from clear that designating the judiciary as an alternative

forum to seek a stay, as the statute does, makes EPA action on stays

subject to judicial review. But see Op. 9. The text’s obvious

reading is to give private parties power to seek a stay without having

to ask the agency. Given the statutory context, this makes sense; an

agency may not want to reconsider its rule, let alone stay its

implementation to facilitate an undesired reconsideration. By

establishing the judiciary as an alternative, the statute ensures stays

result from factual warrant and not simply because the agency wills

one. Even if the statute could be read to authorize judicial review

of agency action on stays, there is no basis to conclude review

extends beyond denied stays. A denied stay in this statutory

context—reconsideration based on new grounds or grounds

“impracticable” to raise during rulemaking—might be judicially

reviewable for the same reason the denial of such reconsideration

petitions are reviewable. Cf. Sendra Corp. v. Magaw, 111 F.3d 162,

166 (D.C. Cir. 1997) (“An agency’s denial of a petition . . . for

reconsideration is not itself subject to judicial review if the petition

alleges only ‘material error’ in the agency’s original decision. . . . On

2

decision to stay the rule pending reconsideration is subject to

judicial review, claiming the stay is “final agency action” “with

respect to” complying with the rule. See Op. 7. It also

characterizes the stay as “essentially an order delaying the

rule’s effective date.” Id. at 6. But hitting the pause button is

the antithesis of ending the matter. The Court presumes a

certain outcome from EPA’s reconsideration, one that a stay

alone gives us no basis to presume. A stay is, of course,

“final” as to whether one must comply with the rule during

reconsideration—just as a trial court’s evidentiary

determination is “final” until the time for appeal ripens. That

some agency action resolves itself does not render it “final.”

If it did, every interlocutory action that leaves compliance to

the discretion of the regulated party would justify judicial

review. The stay is “essentially” nothing but a stay, and it

does not qualify as “final agency action” under the two-part

inquiry set forth by the Supreme Court.

As EPA’s stay here is “of a[n] . . . interlocutory nature,” it

cannot satisfy the first element of “final agency action:”

consummation of the agency’s decision-making process. See

Bennett v. Spear, 520 U.S. 154, 177–78 (1997); see also

Reliable Automatic Sprinkler Co., Inc. v. Consumer Prod.

Safety Comm’n, 324 F.3d 726, 731 (D.C. Cir. 2003) (“Agency

action is considered final to the extent it imposes an obligation,

denies a right, or fixes some legal relationship.”). Here,

EPA’s ninety-day stay is limited to specific requirements

within the rule that are among the subjects of reconsideration—



the other hand, if an agency denies a petition for reconsideration

alleging ‘new evidence’ or ‘changed circumstances,’ the agency’s

denial is reviewable as a final agency action . . . .”). But, EPA

granting a stay does not present the same risk of agency short shrift

toward reconsideration. Nothing about the text or its context

justifies importing a new purpose into the statute to authorize judicial

review of granted stays.

3

requirements for fugitive emissions, pneumatic pump

standards, and certification requirements for professional

engineers. See Pet’r Attach. 4–5. A temporary stay

facilitates reconsidering these discrete issues; it does not

resolve them. This is not the kind of agency action considered

“final.” Cf. Reliable, 324 F.3d at 731 (“The agency’s conduct

thus far amounts to . . . a statement of the agency’s intention to

make a preliminary determination . . . and a request for

voluntary corrective action.”). The Environmental Petitioners

will be able to raise their arguments regarding the alleged

harms of revisiting EPA’s rule during the reconsideration

process, and once again during the litigation that will surely

follow EPA’s reconsideration. With these available avenues,

it belies the virtue of “final agency action” to include an

agency’s intermediate stay within the standard’s ambit. See

id. at 733 (“So long as Reliable retains the opportunity to

convince the agency that it lacks jurisdiction over Reliable’s

sprinkler heads, it makes no sense for a court to intervene. It

conserves both judicial and administrative resources to allow

the required agency deliberative process to take place before

judicial review is undertaken.”); Ciba-Geigy Corp. v. U.S.

EPA, 801 F.2d 430, 436 (D.C. Cir. 1986) (“Judicial review at

[this] stage improperly intrudes into the agency’s

decisionmaking process. It also squanders judicial resources

since the challenging party still enjoys an opportunity to

convince the agency to change its mind.”).

The Court relies on a series of pre-Bennett cases to equate

EPA’s stay with instances where this court has reviewed an

agency amending or revoking a rule. See Op. 7. None of

these cases are apposite.2

And while Int’l Union, United Mine

2 Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802 (D.C.

Cir. 1983) holds “an agency decision which effectively suspends the

implementation of important and duly promulgated standards . . .

4

Workers of Am. v. Mine Safety & Health Admin., 823 F.2d 608

(D.C. Cir. 1987) may seem analogous, it does not involve the

sort of neutral, time-limited stay involved here.3



constitutes rulemaking subject to notice and comment . . . .” Id. at

816 (citing Council of the Southern Mountains, Inc. v. Donovan, 653

F.3d 573 (D.C. Cir. 1981) and Nat. Res. Def. Council, Inc. v. EPA,

683 F.2d 752 (3d Cir. 1982) as “stand[ing] for the [same]

proposition”). It is not credible to suggest that, absent submitting

its stay pending reconsideration through notice and comment

rulemaking, EPA’s action is ultra vires and thereby subject to

judicial review.

3 The question in Int’l Union was the following: Whether an

administrative law judge could order the Mine Safety & Health

Administration to grant a party “interim relief” from a mine-safety

standard while that party awaited a decision on whether it could

receive a “mine-specific exemption from [the] mandatory standard.”

See 823 F.3d at 610–12. Exemptions were only granted when the

agency determined “an alternative method” to the mandatory

standard could “guarantee no less than the same measure of

protection” afforded by the standard “at all times.” See id. at 611.

But subjecting a particular regulated entity to a different compliance

standard via an exemption is not the same as staying a rule pending

its reconsideration—that exemption alters the status quo (the

mandatory rule) as to one party, while here, staying the rule

preserves the status quo (no rule in effect) as to everyone. Further,

in the exemption context, the “interim relief” is akin to an injunction;

an ALJ is ordering the agency not to enforce the existing standard as

to the exemption-petitioning party, and ordering the petitioning

party to comply with an interim standard. See id. at 612–13. In the

context of this stay, however, EPA is not ordering anyone to do

anything. The agency is merely announcing that it has decided to

allocate its resources towards reconsideration rather than enforcing

the rule. Despite the Court’s contrary intimations, enjoining

conduct is not the same action as issuing a stay. Cf. Nken v. Holder,

556 U.S. 418, 428–29 (2009) (“A stay pending appeal certainly has

some functional overlap with an injunction . . . . Both can have the

practical effect of preventing some action before the legality of that

5

In contrast to our precedent, the Court’s opinion concludes

a particular administrative proceeding has innumerable final

agency actions, including intermediate decisions. No

authority supports this proposition. The majority contends

Friedman v. FAA, 841 F.3d 537 (D.C. Cir. 2016) does, Op. 8–

9, but Friedman was sui generis; it spoke only to the “specific

facts presented,” a “constructive denial of Friedman’s

application for a first class [medical] certificate.” 841 F.3d

at 541. Here, unlike in Friedman, the agency has not placed

Environmental Petitioners in an indefinite “holding pattern”

preventing “any explicitly final determination.” Cf. id. at 542.

Rather, EPA has authorized a time-limited stay during which it

will proceed through the rule reconsideration process—a

process where, as mentioned above, the Environmental

Petitioners are free to voice their objections and then sue the

agency if they disagree with the agency’s actions. Cf. CibaGeigy,

801 F.2d at 437 (finding “final agency action” when

EPA’s action, unlike the stay here, “gave no indication that [its

position was] subject to further agency consideration or

possible modification”). This is a far cry from an agency

“clearly communicat[ing] it will not reach a determination on

a petitioner’s submission . . . [while] simultaneously refus[ing]

to deny the petitioner’s submission.” Friedman, 841 F.3d at

542.

As a rule of decision, the Court’s unbounded reading of

Friedman creates a peculiar backdoor: The Court insists,

correctly, EPA’s decision to reconsider the rule is within the

agency’s discretion. But if the stay is not, and the stay is tied



action has been conclusively determined. But a stay achieves this

result by temporarily suspending the source of authority to act—the

order or judgment in question—not by directing an actor’s

conduct.”).

6

up with the reconsideration authority, deeming the stay “final

agency action” allows the Court to review the basis for

reconsideration itself. See Op. 10. Certainly, the rule of law

would benefit from the judiciary shedding its unfortunate

sheepishness towards reviewing agency action. But that noble

goal does not absolve us from “carefully consider[ing] why and

when we are meant to” review agency action. See AKM LLC

v. Sec’y of Labor, 675 F.3d 752, 769 (D.C. Cir. 2012) (Brown,

J., concurring). Yes, the “reflex of deference” can be

dangerous. Id. But so is an aneurysm of activism that

enlarges a doctrine by engorging judicial prerogatives to the

point of rupturing the separation of powers. See Santa Monica

Beach, LTD. v. Superior Court, 968 P.2d 993, 1040 (Cal. 1999)

(Brown, J., dissenting) (“Judicial review is properly conceived

in narrow terms. It is not a license to supersede the exercise

of power by a coordinate branch which acts well within

constitutional boundaries.”). If an intermediate stay is the

consummation of an agency’s decision-making, we have

conflated the agency preserving the status quo, i.e., forestalling

the rule’s requirements in order to reconsider them, with the

agency completing a course of action, i.e., ordering

compliance. In my view, this is erroneous.

Turning to the second element of “final agency action,” the

Court establishes nothing by asserting the stay creates obvious

consequences for the regulated parties. See, e.g., Op. 8.

Agency actions of various kinds, “final” or not, come with

consequences. The relevant question is whether the

consequences have a “legal force or practical effect” beyond

“the disruptions that accompany” the agency making a decision

to “initiate proceedings.” See Fed. Trade Comm’n v.

Standard Oil Co. of Cal., 449 U.S. 232, 241, 243 (1980).

Here, EPA’s unreviewable decision to reconsider its rule

is akin to an agency making “a precatory finding of [a] ‘reason

7

to believe’” legal action is warranted. Cf. Reliable Automatic

Sprinkler Co. v. Consumer Prod. Safety Comm’n, 173 F.

Supp.2d 41, 44 (D.D.C. 2001) (quoting Standard Oil Co., 449

U.S. at 234). The stay—designed so EPA can devote

resources to reconsidering the rule rather than enforcing it, and

so industry can avoid implementing changes that

reconsideration may later obviate—is subsidiary to the

reconsideration itself. If “final agency action” cannot

encompass the decision to reconsider the rule, “it cannot

possibly encompass the . . . steps that the [agency] has taken to

date” to facilitate reconsideration. See id. at 44. EPA is not

compelling compliance here. If a regulated entity wants to

comport its conduct to the requirements of the stayed rule, it is

free to do so. By issuing the stay, all the EPA has indicated it

that it will not, legally or practically, enforce the rule under

reconsideration. The stay’s consequences therefore do not

impose legal or practical requirements on anyone—separating

them from the kind of consequences encompassed by “final

agency action.” Cf. Reliable, 324 F.3d at 735 (“The discovery

orders in ARCO were legally binding orders, whereas here,

there is no order, only the possibility of Reliable having to

defend itself at an enforcement hearing if Reliable does not

undertake certain voluntary action, and if the agency decides to

proceed against it.”).

The Court is thus in error to claim Ciba-Geigy. See Op.

9. Ciba-Geigy was a “comply-or-else” case; “the next step

was not further adjudication, but an enforcement action in

federal court.” CSX Transp., Inc. v. Surface Transp. Bd., 774

F.3d 25, 32 (D.C. Cir. 2014) (explaining Ciba-Geigy). Here,

Environmental Petitioners are not presented with agency

conduct demonstrating EPA will take no additional action.

EPA’s stay does not ask anyone to alter their conduct, so

“judicial review must wait.” See id. That Petitioners are

anxious to see their victory implemented and impatient with

8

delay does not make EPA’s action final. It may be annoying,

disappointing, ill-advised, even unlawful, but that does not

transform a stay to facilitate reconsideration into “final agency

action.”

Without either element of the “final agency action” inquiry

satisfied, I cannot conclude EPA’s stay falls within our

jurisdictional reach. Section 7607(d)(7)(B) renders a stay a

mere means to facilitate a decision we lack the authority to

review. Accordingly, I would dismiss the Environmental

Petitioners’ motion on the grounds that we lack jurisdiction to

review EPA’s stay, and not reach the remaining issues. As the

Court does otherwise, I respectfully dissent from the Court’s

decision to grant the motion and vacate EPA’s stay.

Motion to stay granted.