United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided July 3, 2017 

No. 17-1145 

CLEAN AIR COUNCIL, ET AL., 

PETITIONERS

v. 

E. SCOTT PRUITT, ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY AND ENVIRONMENTAL PROTECTION

AGENCY, 

RESPONDENTS

AMERICAN PETROLEUM INSTITUTE, ET AL., 

INTERVENORS

On Emergency Motion For A Stay Or, 

In the Alternative, Summary Vacatur

Susannah L. Weaver, Sean H. Donahue, David Doniger, 

Meleah Geertsma, Tim Ballo, Joel Minor, Adam Kron, Peter 

Zalzal, Alice Henderson, Vickie Patton, Tomás Carbonell, 

Andres Restrepo, Joanne Marie Spalding, Ann Brewster 

Weeks, and Darin Schroeder were on the emergency motion 

for a stay or, in the alternative, summary vacatur and reply to 

responses in opposition to emergency motion for a stay or, in 

the alternative, summary vacatur.
2

Jeffrey H. Wood, Acting Assistant Attorney General, U.S. 

Department of Justice, and Benjamin Carlisle, Attorney, were 

on EPA’s opposition to petitioners’ emergency motion for a 

stay or, in the alternative, summary vacatur. 

William L. Wehrum, Felicia H. Barnes, Stacy R. Linden, 

John Wagner, Samuel B. Boxerman, Joel F. Visser, Sandra Y. 

Snyder, James D. Elliott, Shannon S. Broome, Charles H. 

Knauss, and John R. Jacus were on the industry intervenorrespondents’ response in opposition to petitioners’ emergency 

motion for a stay or, in the alternative, summary vacatur. 

Before: TATEL, BROWN, and WILKINS, Circuit Judges. 

Opinion for the Court filed PER CURIAM. 

Dissenting Opinion filed by Circuit Judge BROWN.

PER CURIAM: 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 
5

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.
6

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 
7

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 
11

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.