# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 16, 2018 Decided August 17, 2018

No. 17

- 1155

A IR A LLIANCE H OUSTON
, ET AL
., P ETITIONERS

v.

E NVI RONMENTAL P ROTECTION A GENCY AND A NDREW W HEELER
, A CTING A DMINISTRATOR
, U.S. E NVIRONMENTAL

P ROTECTION A GENCY
, R ESPONDENTS

U NITED S TEEL
, P APER AND F ORESTRY
, R UBBER
, M ANUFACTURING
, E NERGY
, A LLIED I NDUSTRIAL AND S ERVICE W ORKERS I NTERNATIONAL U NION
, AFL

- CIO

- CLC, ET AL
.,

I NTERVENORS

Consolidated with 17

- 1181

On Petitions for Review of a Final Rule of the United States Environmental Protection Agency2

Steven C. Wu , Deputy Solicitor General, Office of the Attorney General for the State of New York, argued the cause
for State Petitioners. With him on the briefs were Eric T. Schneiderman , Attorney General, Barbara D. Underwood

, Solicitor General, David S. Frankel , Assistant Solicitor General, Michael J. Myers , Assistant Attorney General, Ellen
F. Rosenblum , Attorney General, Office of the Attorney
General for the State of Ore gon, Paul Garrahan , Attorney

- in

Charge, Peter F. Kilmartin , Attorney General, Office of the Attorney General for the State of Rhode Island, Gregory S. Schultz

, Special Assistant Attorney General, Thomas J.
Donovan

, Jr ., Attorney General, Office of the Att orney General for the State of Vermont, Nicholas F. Persampieri

, Assistant Attorney General, Lisa Madigan , Attorney General, Office of the Attorney General for the State of Illinois, Matthew J. Dunn

, Gerald T. Karr

, James P. Gignac , Assistant Attorneys General, Tom Miller , Attorney General, Office of the Attorney General for the State of Iowa, Jacob Larson

, Assistant Attorney General, Janet T. Mills , Attorney General, Office of the Attorney General for the State of Maine, Gerald
D. Reid , Natural Resources Division Chief, Robert W. Ferguson , Attorney General, Office of the Attorney General for the State of Washington, William R. Sherman , Assistant Attorney General, Brian E. Frosh , Attorney General, Office of the Attorney General for t he State of Maryland, Steven M. Sullivan , Solicitor General, Maura Healey , Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Christophe Courchesne , Assistant Attorney General, Hector H. Balderas , Attorney General, Offi ce of the Attorney General for the State of New Mexico, and William Grantham , Assistant Attorney General.

Emma C. Cheuse and Susan J. Eckert argued the cause for Community Petitioners and Petitioner

- Intervenor. With them3

on the briefs were Gordon E. Somm ers and Joseph M. Santarella

, Jr

.

Scott L. Nelson and Allison M. Zieve were on the brief for
amici curiae Former Regulatory Officials in support of petitioners and vacatur.

Richard L. Revesz

, Bethany A. Davis Noll

, Denise A. Grab

, and Jason A. Schwartz we re on the brief for amicus curiae Institute for Policy Integrity at New York University School of Law in support of petitioners.

Jonathan Brightbill , Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for respondents.
With h im on the brief were Jeffrey H. Wood , Acting Assistant Attorney General, Stephanie J. Talbert , Attorney, and Brian
Doster , Assistant General Counsel, U.S. Environmental Protection Agency.

Shannon S. Broome argued the cause for intervenor Chemical Safety A dvocacy Group, et al. With her on the brief

were C. Frederick Beckner III

, Justin A. Savage

, Ryan C.
Morris

, Kurt A. Johnson

, Charles H. Knauss

, Peter Tolsdorf

, Steven P. Lehotsky

, Michael B. Schon

, Leslie A. Hulse , and Richard S. Moskowitz

.

Elizabeth B. Murrill , Solicitor General, Office of the Attorney General for the State of Louisiana, argued the cause
for intervenor State of Louisiana. With her on the brief were Jeff Landry , Attorney General, Michelle M. White , Assistant Solicitor General, Leslie Rutledge , Attorney General, Office of the Attorney General for the State of Arkansas, Lee Rudofsky

, Solicitor General, Nicholas J. Bronni , Deputy Solicitor General, Derek Schmidt , Attorney General, Office of the Attorney General for the State of Kansas, Je ffrey A. Chanay

,4

Chief Deputy Attorney General, Bryan C

. Clark , Assistant Solicitor General, Mark Brnovich , Attorney General, Office of the Attorney General for the State of Arizona, Dominic E. Draye , Solicitor General, Pamela Jo Bondi , Attorney General,
O ffice of the Attorney General for the State of Florida, Edward M. Wenger , Chief Deputy Solicitor General, Mike Hunter

, Attorney General, Office of the Attorney General for the State of Oklahoma, Mithun Maninghani , Solicitor General, Ken
Paxton , Attorney Ge neral, Office of the Attorney General of the State of Texas, Scott A. Keller , Solicitor General, Patrick Morrisey , Attorney General, Office of the Attorney General for the State of West Virginia, Erica N. Peterson , Deputy Solicitor General, S. Chad Meredit h , Deputy General Counsel, Office of the Attorney General for the Commonwealth of Kentucky, Alan Wilson , Attorney General, Office of the Attorney General for the State of South Carolina, James Emory Smith

, Jr

., Deputy Solicitor General, Sean Reyes , Attorne y General, Office of the Attorney General for the State of Utah, Tyler R.
Green , Solicitor General, Brad Schimel , Attorney General, Office of the Attorney General for the State of Wisconsin, and Misha Tseytlin , Solicitor General. Paul A. Martin , Chief Dep uty Attorney General, Office of the Attorney General for the State of West Virginia, Harry J. Vorhoff , Assistant Attorney General, Office of the Attorney General for the State of Louisiana, and Jonathan L. Williams entered appearances.

Before: R OGERS
, K AVANAUGH * and W ILKINS
, Circuit Judges

.

Opinion for the c ourt filed P ER C URIAM

.

* Judge Kavanaugh was a member of the panel at the time the case was argued but did not participate in this opinion.5

P ER C URIAM : This appeal presents the question whether the Environmental Protection Agency (“EPA”) ha d authority
under Section s 307(d) (7)(B) and 112(r) (7) of the Clean Air Act (“CAA”)

, 42 U.S.C. §§ 7607(d)(7)(B), 7412(r)(7)

, to delay the
effective date of the Chemical Disaster Rule of January 13

, 2017, for twenty months for the purpose of reconsideration

, and, if so, whether it properly exercised that authority

. We hold that where EPA has exercised its Section 7607(d)(7)(B) authority to delay the effectiveness of a final rule, it cannot avoid that statute’s express limitations by invoking general rulemaking authority under a different statutory provisi on. EPA’s action was arbitr ary and capricious in any event. Accordingly, we vacate the Delay Rule of June 14

, 2017.

I.

A.

In 1990

, Congress amended the CAA

, and addressed among other things multiple high

- profile chemical accidents that harmed workers, local communities, and the environment.
See 136 C ONG

. R E C

. S 16,899

, S 16,926

– 27 (1990) (Conf. Rep.).
Section 112(r) of the 1990 Amendments , “Prevention of Accidental Releases,” provides that “[i]t shall be the objective of the regulat ions and programs authorized under this subsection to prevent the accidental release and to minimize the consequences of any such release of any [listed substance] or any other e xtremely hazardous substance.” 42 U.S.C. § 7412(r)(1). “Accidental release” is defined as “an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source.” Id. § 7412(r)(2)(A). Congress also
established the Chemical Safety Board (“CSB”) to investigate major accidental releases and issue reports to EPA “recommending measures to reduce the likelihood or the6

consequences of accidental releases and proposing corrective steps to make chemical [industrial processes] as safe and free
from risk of injury as is possi ble.” Id. § 7412(r)(6)(C)(ii). “Whenever the [CSB] submits a recommendation with respect to accidental releases to [EPA], the Administrator shall respond
to such recommendation

. . . not later than 180 days after receipt,” indicating whether EPA will “in itiate a rulemaking or
issue such orders as are necessary to implement the recommendation in full or in part, pursuant to any timetable contained in the recommendation.” Id. § 7412(r)(6)(I). If the Administrator decides not to implement the CSB’s

recomme ndation in whole or part, “including any variation from the schedule contained in the recommendation,” the Administrator must provide a statement “setting forth the reasons for such determination.” Id.

Section 7412 (r)(7) authorizes EPA to “promulgate re lease prevention, detection, and correction requirements which may include monitoring, record

- keeping, reporting, training, vapor recovery, secondary containment, and other design, equipment, work practice, and operation al requirements.” Id

. § 7412(r)(7)(A). “ Regulations promulgated pursuant to this subparagraph shall have an effective date, as determined by the Administrator, assuring compliance as expeditiously as practicable.” Id. That section also requires EPA to “promulgate reasonable regulations and appropriate guidance to provide, to the greatest extent practicable , for the prevention and detection of accidental releases of regulated substances and for response to such releases by the owners or operators of the
sources of such releas es,” and requires that such regulations “be applicable to a stationary source 3 years after the date of promulgation.” Id. § 7412(r)(7)(B)(i). These regulations must
direct sta tionary sources to implement a Risk Management
P lan (“RMP”) to “detect and pre vent or min imize accidental
releases . . . and to provide a prompt emergency response to7

any such releases in order to protect human health and the environment.” Id. § 7412(r)(7)(B)(ii). The RMPs must be registered with the EPA and available to the publi c. Id. § 7412(r)(7)(B)(iii).

Under Section 307(d)(7)(B) of the CAA

, 42 U.S.C. § 7607(d)(7)(B), EPA must convene a proceeding to reconsider a rule if a person “raising an objection can demonstrate to the Administrator that [1] it was impracticable to rai se such objection with in [t he notice and comment period] . . . and [2] if such objection is of central relevance to the outcome of the
rule

. ” Clean Air Council v. Pruitt , 862 F.3d 1, 4

– 5 (D.C. Cir. 2017) (alterations in original). “Such reconsideration s hall not postpone the effectiveness of the rule.” 42 U.S.C. § 7607(d)(7)(B). “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 per iod not to exceed t hree months .’” Clean Air Council , 862 F.3d at 5 (quoting § 7607(d)(7)(B)).

B.

EPA first promulgated accident al release prevention regulations in 1996. Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air
Act Section [7412(r)(7)]

, 61 Fed. Reg. 31,668 (June 20, 1996). In July 2012, a coalition of environmental groups, community organization s , unions, and health workers petitioned EPA for a rulemaking under Section 7412 (r)(7) to “require the use of inherently safer tech nologies, where feasible, by facilities that use or store hazardous chemicals.” Greenpeace, United Steelworkers, Sierra Club et al.

, Petition to Prevent Chemical
Disasters to EPA Administrator Lisa Jackson (July 25, 2012)

. The petition cited dangers from releases caused both by accidents and by terrorist attacks on U.S. chemical facilities.8

Soon after, several chemical accidents occurred that received significant public attention and became subjects of CSB investigations. These accidents included the Ap ril 2013 explosion of a fertilizer plant in West, Texas and the June 2013 explosion of a chemical plant in Geismar, Louisiana. See Oversight of Federal Risk Management and Emergency Planning Programs to Prevent and Address Chemical Threats, Including the Events Leading Up to the Explosions in West, TX and Geismar, LA, Hearing Before the S. Comm. on Envt. & Pub. Works , 113th Cong. (2013) (statement of Rafael Moure

Eraso, Chairperson of the U.S. Chemical Safety Board). The West, Texas disaster involved a fi re and explosion that crushed buildings and sent projectiles into neighboring communities, killing twelve first responder s and two members of the public
and causing $230 million in damage. The Geismar, Louisiana disaster also involved a fire and explosion , which killed two workers and injured many more.

On August 1, 2013, President Obama issue d an executive
order establishing a Chemical Facility Safety and Security Working Group co

- chaired by the EPA Administrator and the
Secretaries of Labor and Homel and Security. Exec. Order No. 13,650 § 2, Improving Chemical Facility Safety and Security

, 78 Fed. Reg. 48,029 (Au g. 1, 2013) . The E xecutive O rde r directed that within 90 days,

[T]he Administrator of EPA and the Secretary of
Labor shall review the chemical hazards covered by
th e Risk Management Program (RMP) . . . and
determine if [it] can and should be expanded to address additional regulated substances and types of hazards. In addition, the EPA . .

. shall develop a plan, including
a timeline and resource requirements, to expand, implement, and enforce [the RMP] in a manner that9

addresses the additional regulated substances and types of hazards.

Id. § 6(c)

.

One year later, EPA published a request for information in the Federal Register seeking comment on “potential revisions to its [ accidental release ] regulations and related programs.” Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Sect ion [7412(r)(7)] , 79 Fed. Reg. 44, 604, 44, 604 (July 31, 2014). The request solicited comments on dozens of potential regulatory
actions under Section 7412 (r) , citing several chemical
accidents that had occurred since the most recent pro mulgation
of accident al release prevention requirements under that
section . EPA received over 100,000 response s , including a 50

- page letter from the CSB recommending dozens of regulatory regulations based on research and recent accident investigations.

In March 2016 , EPA issued a Notice of Proposed Rulemaking proposing amendments to the accident al release prevention regulations. Accidental Release Prevention Requirements: Risk Management Programs under the Clean
Air Act (“Disaster Rule NPRM”)

, 81 Fed. Reg. 13,638 (Mar. 14, 2016). The Disaster Rule NPRM explained that although
EPA “believe[d] the [ existing regulations] ha[ve] been effective in preventing an d mitigating chemical
accidents

. . . [,] major incidents, such as the West, Texas explosion, hig hlight the importance of reviewing and evaluating current practices and regulatory requirements, and applying lessons learned

. . . to advance process safety where needed.” Id. at 13,646 . EPA also explained that “[i]n addition to the tragedy at the West Fertilizer facility

, a number of other
incidents have demonstrated a significant risk to the safety of10

American workers and communities,” and proceeded to discuss
several recent explosions and fires that resulted in death, injury, and property damage to wo rkers, first responders, and local
communities. Id. at 13,644 (emphasis added)

. EPA estimated
the annualized cost of on

- site damages from chemical releases was $274.7 million, and estimated the cost of carrying out the proposed rule would be $131.2 milli on annually for the 12,500 facilities potentially subject to its requirements. Although EPA was “unable to quantify what specific reductions [in damages] may occur as a result of these proposed revisions [ to the
accidental release regulations ] ,” it “ anticipate [d] that promulgation and implementation of this rule would result in a reduction of the frequency and magnitude of damages from releases,” and “expect [ed] that some portion of future damages would be prevented through implementation of a final r ule.”
Id. at 13,642

. Further, EPA found, “the monetized impacts omit many important categories of accident impacts including lost productivity, the costs of emergency response, transaction costs, property value impac ts in the surrounding community

. . . , and environmental impacts.” Id. at 13,643

. The Disaster Rule NPRM specifically solicited comments on proposed compliance and effective dates for the various requirements

.

EPA promulgated a final rule on January 13, 2017

. Accidental Release Preventio n Requirements: Risk Management Programs Under the Clean Air Act (“Chemical Disaster Rule”), 82 Fed. Reg. 4 594 (Jan. 13, 2017 )

. The final
rule revised dozens of Section 7412 (r) (7) requirements in three major areas: (1) accident prevention , including expa nded post

accident investigations, more rigorous safety audits, safety training, and safer technology requirements; (2) emergency
response, including more frequent coordination with local first responders and emergency response committees, and more
intensi ve incident

- response exercises; and (3) public11

information disclosure , including public disclosure of safety information and public

- meeting requireme n ts

. EPA responded to comments it received regarding the appropriate effective and compliance dates for various provisions of the rule and explained in detail why it chose to adopt or reject these
recommendations. T he final rule set an overall effective date

o f March 14, 2017, sixty days after promulgation

. Id. at 4 594

. Some provisions related to clarifying regulatory definitions
went into effect on that date . Others, including most local

emergency

- response coordination requirements, became
effective in one year, on March 14, 2018. Id. at 4 678 . The requirements for emergency response exercises, public
information

- sharing and post

- accident public meetings, third

party audits, more rigorous post

- incident analyses , and safer technology requiremen t s became effe ctive three years later, on March 15, 2021. Id. The compliance deadline for covered facilities to submit an updated RMP was March 14, 2022. Id.

C.

Following a change in presidential administration, EPA delayed the effective date of the final C hemic al Disaster Rule
three times. O n January 26, 2017, less than two weeks after promulgation of the rule , EPA published a final rule delaying
its effective date by one week, to March 21, 2017

, along with the effective dates of twenty

- nine other final EPA rul es . Delay of Effective Date for 30 Final Regulations Published by the Environmental Protection Agency Between October 28, 201 6 and J anuary 17, 2017, 82 Fed. Reg. 8 499

- 02 (Jan. 26, 2017).
This initial delay implemented a January 20, 2017
memorandum from then

- White House Chief of Staff Reince Priebus directing agency hea ds to “temporarily postpone [the] effective dates for 60 days” of regulations that had been promulgated but not yet taken effect. Memorandum from
Reince Priebus to Heads of Executive Departments and12

Agencies: Regulatory Freeze Pending Review (Jan. 20, 2017 ) (“Priebus Memorandum”)

. The Priebus M emorandum also directed agency heads to “consider proposing for notice and comment a rule to delay t he effective date for regulations beyond that 60

- day period.” Id.

On February 28, 2017, a coalition of industry groups submitted a petition for reconsideration of the Chemical
Disaster Rule. A group of states also petitioned for
reconsideration. About two weeks later , the EPA
Administrator announced his determination that the criteria for
reconsideration under Section 7607 (d)(7) (B) had been met and, pursuant to that section, administratively stayed the Chemical Disaster Rule’s effective dates for ninet y days , until June 19,
2017

. See Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Further Delay of Effective Date (“90

- Day Stay”) , 82 Fed. Reg. 13,968

- 02 (Mar. 16, 2017). During that stay, o n April 3, 2017, EP A issued a notice of proposed rulemaking proposing to delay the
effective date of the Chemical Disaster Rule by an additional
20 months, until February 19, 2019. Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Further Delay of Effective Date (“Delay Rule NPRM”), 82 Fed. Reg. 16,146

- 01 , 16,148 (Apr. 3, 2017)

.

EPA promulgated the final rule on June 14, 2017, delaying
the effective date of the Chemical Disaster Rule until February 19, 2019. Accidental Release P revention Requirements: Risk Management Programs Under the Clean Air Act; Further Delay
of Effective Date (“Delay Rule”), 82 Fed. Reg. 27,133

- 01 (June 14, 2017 ). The Delay Rule recounted that EPA has received three petitions for reconsideration of the Ch emical Disaster Rule “as provided for in [Section 7607(d) (7)(B) ],” and
that EPA issued a t hree

- month stay under that section because “the criteria for reconsideration ha[d] been met for at least one13

of the three objections.” Id. at 27,134

– 35. However, EPA

ex plained, Section 7607(d)(7)(B) limits a stay “to three months,” and “EPA believed that three months was insufficient to complete the necessary steps in the reconsideration process for the [Chemical Disaster Rule].” Id. at 27,135.

Thus, according to EP A, the Delay Rule has the purpose of “allow [ing] EPA to conduct a reconsideration proceeding and to consider other issues that may benefit from additional comment.” Id. at 27,133. The Delay Rule further explained
that EPA might take additional action dur ing the 20

- month delay period, “which could include proposing and finalizing a rule to revise or rescind [the Chemical Disaster Rule].” Id. EPA justified its choice of a 20

- month delay because of the complex issues involved and “[b]ased on EPA rulemaking experience,” without further elaboration

. Id. at 27,140 . It justified its delay of the first

- res ponder coordination provisions

— which otherwise would have been effective on March 14,
2018

— because “[i]n agreeing to convene a proceeding for
reconsideration of the final rule, EPA agreed to provide the public with an opportuni ty to comment on other issues . . .

. By finalizing these provisions immediately, EPA would not be allowing the public an additional opportuni ty to comment on them.” Id. at 27,142

. The Delay Rule also explained that “[a] delay of effectiveness will allow EPA time for a comprehensive review of objections to the [Chemical Disaster Rule] without imposing the rule’s substantial compliance and implementation resource burden when the outcome of the review is pending.” Id. at 27,136. EPA stated that “[c]ompliance with all of the rule provisions is not require d as long as the rule does not become effective. The EPA did not propose and is not taking any action on any compliance dates
at this time .” Id. As authority for promulgating the Delay Rule

, EPA cited Section s 7607 (d) and 7412 (r)(7). Id. at 27,135

.14

Two groups petitioned for review of the Delay Rule: over a dozen community and environmental groups , including Air
Alliance Houston (“Community Petiti oners”), and a number of states ( “State Petitioners”). The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial
and Service Wo rkers I nternational Union, AFL

- CIO/CLC (“United Steelworkers”)

, intervened on behalf of Community
Petitioners. A group of industry interests (“Industry Intervenors”), many of whom had petitioned EPA for reconsideration of the Chemical Disaster Rule, inter vened on
EPA’ s behalf.

II.

As a threshold matter, EPA and Industry Intervenors challenge the Article III standing of Community Petitioners and State Petitioners to bring these petitions. Standing is a structural, constitutional restraint on the subject matter jurisdiction of the federal judiciary. Clapper v. Amnesty Int’l
USA

, 568 U.S. 398

, 412 (2013). Petitioners in an agency appeal must, in their opening brief, either identify “record evidence” or “submit additional evidence to the court of appeals” to support their standing. Pub. Citizen, Inc. v. NHTSA (“ Public Citizen I

”) , 489 F.3d 1279, 1289 (D.C. Cir. 2007). “When evaluating such evidence concerning standing, we ‘assume that on the merits the plaintiffs would be successful in their claims.’” Id. ( quoting City of Waukesha v. EPA , 320 F.3d 228, 235 (D.C. Cir. 2003) ).

To establish standing, a petitioner must show (i) it has “suffered a concrete and particularized injury in fact, (ii) that was caused by or is fairly traceable to the actions of the defendant, and (iii) is capable of resolution and likely to be redressed by judicial decision.” Sierra Club v. EPA , 755 F.3d 968, 973 (D.C. Cir. 2014) (citing Lujan v. Def s

. of Wildlife , 50415

U.S. 555, 560

– 61 (1992)). “An allegation of future injury m ay suffice” to show injury in fact “if the threatened injury is ‘certainly impending’ or there is a ‘substantial risk that the harm will occur.’” Susan B. Anthony List v. Dri e haus , 134 S. Ct. 2334, 2341 (2014) (quoting Clapper

, 568 U.S. at 414 n.5).
The party asserting standing mu st also demonstrate “ a causal connection between the injury and the conduct complained of.” Lujan , 504 U.S. at 560

. When challenging failure to regulate, a petitioner need demonstrate only a “substantial probability
that local conditions will be adversely affected, and thus will harm members of the petitioner organization.” Am. Petroleum
Inst. v. EPA , 216 F.3d 50, 63 (D.C. Cir. 2000) (quotation marks omitted). At the same time, “when the [petitioner] is not himself the object of government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” Lujan , 504 U.S. at 562 (quoting Allen v. Wright , 468 U.S. 737, 758 (1984)).

“An organization has standing to su e on behalf of its
members when

. . . ‘its members would otherwise have standing to sue in their own right.’” Public Citizen I , 489 F.3d at 1289 (quoting Hunt v. Wash. State Apple Adver. Comm’n

, 432 U.S. 333, 343 (1977)). When organizations assert such representational standing, “they must demonstrate that at least one of their members would otherwise have standing to sue in his or her own right; that the interests they seek to protect ar e germane to their organization s ’ purpos es; and that neither the claim asserted nor the relief requested requires the participation of individual members.” Sierra Club , 755 F.3d at 973. “When
more than one association brings suit, ‘we need only find one party with standing’ to satisfy the [sta nding] requirement.” Ctr. for Biological Diversity v. EPA , 861 F.3d 174, 182 (D.C.16

Cir. 2017) (quoting Ams. for Safe Access v. DEA , 706 F.3d 438, 443 (D.C. Cir. 2013)).

A

.

EPA and Industry Intervenors do not contest that a challenge to the Delay Rule i s germane to Community Petitioners’ organizational purposes

. N or do they argue that the participation of individual members is necessary. T he question , then, is whether Community Petitioners have adequately shown that at least one of their members meets the requirements of injury, traceability, and redressability. See Sierra Club , 755 F.3d at 973. They have

.

E ven if the only tangible impact of the Delay Rule were delay of the Chemical Disaster Rule’s first

- responder provisions, the potential harm t o members of United
Steel workers is alone sufficient to provide standing to Community Petitioners. Ctr. for Biological Diversity , 861 F.3d at 182 (only one organization need have standing). Approximately 25,000 of United Steel workers ’ members work in 350 covered chemical plants in the United States, and United
Steel workers

- represented “refineries account for almost two

thirds of United States production. No single company, and no other union, either operates, or represents the workers in more plants that are the subject o f the [RMP] regulations than”
United Steel . Nibarger Decl. ¶ 2 (DEC. 96). S everal
declarations from United Steel workers members describe
hazards that they face from accidental releases as plant workers
and that thei r families face as residents of communities close
to the covered facilities. See, e.g. , Kelley Decl. ¶¶ 3

– 16 (DEC.
21

– 24); Lilienf

eld Decl. ¶¶ 1

– 11 (D EC. 56

– 58); Nibarger17

Decl. ¶¶ 1

– 20 (DEC. 96

– 99). For example, Ben Lilienfeld, a
United Steel workers mem ber in Baytown, Texas

, avers that :

[A] butadiene release in 2015 at Shell Deer Park Refinery & Chemical in Deer Park, Texas, put our
member s a t risk .

. . . At the LyondellBasell facility in Houston, Texas, multiple fires have occurred ove r the last several years causing release s . The same risks
that cause d the explosions at the Phillips Pasadena complex in 1989 [

— a series of explosions at a Texas chemical plant resulting from the accidental release of flammable process gases that killed 23 employees

, injured 100 more, and caused $ 1 .4 billion in damage

— ] still exist today and our members and communities were, are and w ill remain on the front
line.

Lilienf eld Decl. ¶ 10 (DEC. 58) ; Comment, Coalition to Prevent Chemical Disasters (Oct. 29, 2014), J.A. 497 . Such risks are particularized to chemical plant workers such as the
United Steel workers ’ members, and EPA found that the
Chemical Disaster Rule would reduce the kinds of accidents
that Lilienfeld and the other United Steel workers declarants
face in their workplace and communities, and would mitigate such harms by improving coordination between facilities and local first responders. See Chemical Disaster Rule, 82 Fed

. R eg. at 4 597; EPA Activities Under EO 13 650: Risk Management Program (R M P ) Fina l Rule Questions & Answers (June 2017) (“EPA’s changes to the RMP rule will help protect local first responders, community members and employees from death or injury due to chemical facility accidents.”). Living and working with a higher risk of such harm s than18

would exist if the Chemical Disaster Rule became effective on time is therefore directly traceable to the Delay Rule.

B

.

State Petitioners also have Article III standing. “[T]here is no difficulty in recognizing [a state’s] standing to protect proprietary interests or sovereign interests.” 13B W RIGHT &
M ILLER
, F ED

. P RAC

. & P ROC

. § 3531.11.1, Government Standing

– States (3d ed.). The Supreme Court has recognized “[t]wo kinds of nonsovereign interests” for state standing

purposes : proprietary i nterests such as “own[ing] land or participat[ing] in a business venture,” and private interests of another when the state is the “real party in interest.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez

, 458 U.S. 592,
601

– 02 (1982).

T he Delay Rule affects State Petitioners’ propriet ar y interests due to the expenditures states have previously made
and may incur again when responding to accidental releases during the dela y period. State Pet. Br. 22

– 26. Hundreds of
covered industrial fa cilities are located in State Petitioners’
territor y. Petitioner Washington State spent $370,000 responding to and investigating a refinery explosion that EPA specifically cited as an example of why the existing regulations needed to be strengthened. Sta te Pet. Br. 26; Chemical D isaster Rule, 82 Fed. Reg. at 4 599; see also Disaster Rule NPRM, 79 Fed. Reg. at 44,621 (explaining that the CSB found that this explosion in Washington State “could have been avoided if
safe r technologies had been employed”). Mo netary expenditures to mitigate and recover from harms that could have been prevented absent the D elay R ule are precisely the kind of “pocketbook” injury that is incurred by the state itself. See Snapp

, 458 U.S. at 602. Because State P etitioners have
dem onstrated their independent propriet ar y interests in19

avoiding chemical releases in their territory sufficient to support standing, the c ourt need not reach t he alternative argument that Congress has abrogated the prudential bar on

state parens patriae stan ding under the CAA

. See Md. People’s Counsel v. FERC , 760 F.2d 318, 320 (D.C. Cir. 1985).

III.

EPA has thrice delayed the effective date of the Chemical Disaster Rule, 82 Fed. Reg. 4594 (Jan. 13, 2017) (eff. Mar. 14, 2017)

. First , in response to a White House memorandum of January 20, 2017, EPA delayed the effective date by one week.
Pri ebus Memorandum, 82 Fed. Reg. 8 499

- 02 (Jan. 26, 2017). Second , on March 16, 2017, EPA granted industry petitions for reconsideration and stayed the effective date and compliance dates of the Chemical Disaster Rule for three months pursuant

to Section 7607(d)(7 )(B). 90

- Day Stay , 82 Fed. Reg. 13,968

- 02 (Mar. 16, 2017). Third , during this stay, EPA promulgated
the Delay Rule , 82 Fed. Reg. 27,133 (June 14, 2017). The

pre amble to the Delay Rule states that it allows EPA, beyond
the three

- month period authorized in Section 7607(d)(7) (B), “an additional 20 months . . . to conduct reconsideration proceedings and to consider o ther issues that may benefit from additional comment.” Id. (emphasis added).

“[I]t is ‘axiomatic’ that ‘administrative agencies may act only pursuant to authority delegated to them by Congress.’”
Clean Air Council , 862 F.3d at 9 (quoting Verizon v. FCC , 740 F.3d 623, 632 (D.C. Cir. 2014)). This c ourt revi ews “an agency’s construction of the statute which it administers” under
the framework of Chevron, U.S.A., Inc. v. NRDC , 467 U.S. 837, 842 (1984). If “Congress has spoken directly to the precise question at issue” and “the intent of Congress is clear,20

tha t is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842

– 43. But “if the statute is silent or ambiguous with respect to the specific issue,” the court will uphold th e agency’s interpretation if it is reasonable. Id. at 843.

Section 7607(d)(7)(B) provides that reconsideration of a final rule pursuant to that section “ shall not postpon e the
effectiveness of the rule ” and that the “ effectiveness of the rule may be stayed during such reconsideration

. . . for a period not to exceed three months.” It is beyond dispute that EPA relied upon Section 7607(d) ( 7)(B) when delaying the Chemical Disaster Rule in response to reconsideration petitions

. Delay Rule, 82 Fed. Reg. at 27, 134. Throughout the Delay Rule, EPA repeatedly justified delay of effective dates on the basis that it
needs more time to reconsider the Chemical Disaster Rule than was provided under Section 7607(d)(7)(B). See id. at 27,136 (“A delay of effectiven ess will allow EPA time for a comprehensive review of objections to the [Chemical Disaster Rule] without imposing the rule’s substantial compliance and implementation resource burden when the outcome of the review is pending.”); id. at 27,138 (“EPA concurs with commenters to the extent that they argue for finalizing the

p roposed delay in effective date . . . in order to conduct a reconsideration proceeding .” (emphasis added)); id. at 27,140 (“[T]hese issues may be difficult and time consuming to evaluate.” ). T he only justification offered in EPA’s short summary of the Delay Rule is that it “allows the Agency time to consider petitions for reconsideration of the [Chemical Disaster Rule] and take further regulatory action, as appropriate.” Id. at 27,133. B ut r egardless whether EPA “believe[s] that three months [is] insufficient to complete the necessary steps in the reconsideration process,” id. at 27,135, that is not EPA’s call. Congress saw fit to place a three

- month statutory limit on “such reconsiderati on,” 42 U.S.C.21

§ 7607(d)(7)(B) , and this c ourt “must give effect to the unambiguously express e d intent of Congress,” Chevron , 467
U.S. at 843. Because the Delay Rule arose from reconsideration petitions under Section 7607(d)(7)(B) and EPA’s reliance on its authority to delay a rule for reconsideration under that provision

, that statute’s limitations apply.

Tellingly, EPA’s briefing make s no mention of its reliance on Section 7607(d)(7)(B) in promulgating and justifying the Delay Rule. Rather, EPA argues that the Delay Rule is permissible under 42 U.S.C. § 7412(r) (7) , which provides that a rule’s effective date “as determined by the Administrator” must “assure[] compliance as expeditiously as practicable.”
See Respondent Br. 27

– 35. Even if Section 7412(r ) (7) grants EPA authority to delay the effectiveness of a final rule in the absence of reconsideration under Section 7607(d)(7)(B), i t is
well established th at an agency may not circumvent specific statutory limits on its actions by relying on separate, ge neral rulemaking authority. As we explained in NRDC v. Reilly , a “ge neral grant of rulemaking power . . . [cannot] trump the specific provisions of the act.” 976 F.2d 36, 40 (D.C. Cir. 1992); see also Long Island Care at Home, Ltd. v. Coke , 551 U.S. 158, 169

– 70 (2007) (explaining that when two regulations conflict on the same subject matter, “ th e specific governs the general,” and the more specific regulation applies). Similarly,
in Halverson v. Slater , this c ourt held that the Secretary of Transportatio n ’ s general s tatutory authority to delegate “ duties and powers of the Secretary to an officer or an employee of the Department ” was trumped by a mo re specific provision that the

“ Secretary may delegate the duties and powers confer red by
this subtitle . . . to any officer, employee, or member of the
Coast Guard. ” 129 F.3 d 180, 183

– 84 (D.C. Cir. 1997). Th is

c ourt rejected the Secretary’ s argument that he could use his general delegation authority absent an express restriction on22

th at authority, concluding that under Chevron step one

, “ the language of [the more specific provision] compels the
conclusion that the Congress did not intend to authorize delegation of [these] functions to a non

- Coast Guard official.”
Id. at 185; see also Chemical Waste Mgmt., Inc. v. EPA , 976 F.3d 2, 22 (D.C. Cir. 1992) (EPA may not “accommodate” two statutes by allowing one to “override” the more specific requirements of the other).

So too here. EPA cannot escape Congress’s clear intent to specifica lly limit the agency’s authority under Section 7607(d)(7)(B) by grasping at its separate, more general authority under Section 7412(r) (7) . That would almost always
allow EPA to avoid the restrictions of Section 7607(d)(7)(B) by simply insisting it was inv oking Section 7412(r) (7) , even when it is indisputably responding to a Section 7607(d)(7)(B) petition and reconsidering a rule under that specific provision. Such an unreasonable interpretation “ would deprive [the more specific authority] of virtually all e ffect. ” Halverson , 129 F.3d at 189 (quoting Am. Fed ’ n of Gov’ t Emps. v. FLRA , 79 8 F.2d 1525, 1528 (D.C. Cir. 1986) ).

The c ourt’s conclusion that the plain text of Section 7607(d)(7)(B) limits EPA’s authority to delay final rules for the purposes of reconsideration under that provision is bolstered by the statute’s history. Congress enacted the CAA i n 1970 to encourage and pr omote “pollution prevention.” 42 U.S.C. § 7401(c). It found that that air pollution posed “mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deterioration of property, and hazards t o air and ground transportation.” Id. § 7401(a)(2). It envisioned a cooperative effort by federal, state, and local governments to, among other things, “protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare.” Id.23

§ 7401(b), (c). EPA was directed to carry out these purposes by, for instance, identifying and listing hazardous air pollut ants (“HAPs”), setting standards for mobile sources, and issuing

ru les for new stationary sources. In fact, statutor y deadlines were not met for meeting the National Ambient Air Quality Standards (“NAAQS”), and Congress found that “many of the Nation’s most important air pollution problems have failed to improve or have grown more serious

. ” H.R. R EP

. No. 101

- 490,
at 14 4 (May 17, 1990). Also, “a number of serious new air pollution problems have emerged.” Id. In 20 years, EPA had established standards for only seven HAPs, “a small fraction of the many substances associated . . . with cancer, birth defects, neurological damage, or other serious health impacts.” Id. at 151.

In 1990, Congress

— no longer willing to wait for EPA to

act

— amended the CAA. Section 7412 of Title III , the HAPs provision, was amended to establish “a new program for the control of [HAPs]

. ” Id

. at 315. Congress identified and listed
189 HAPs and assigned specific timetables for the promulgation of regulations and the attainment of NAAQS. Significantly for present purposes, Congress was aware that

“ [ a ] ccidental releases of air toxics occur wit h surprising frequency.” Id. at 154. The 1990 Amendments created “a new program under which EPA is to establish reasonable and appropriate regulations to prevent and detect accidental releases to the maximum extent practicable.” Id. at 157; see S.
R EP

. No. 101

- 228, at 237 (Dec. 20, 1989). The section

- by

section analysis stated:

Accident prevention, detection, and response

. — [ Section 7412 (r)(7) ] directs the Administrator within three years of enactment to promulgate, in
consultation with the Secretar ie s of Transportation
and Labor . . . regulations to provide

, to the greatest24

extent practicable, for the prevention and detection of
accidental releases into the ambient air. The regulations must also provide for effective responses
to such accidental rele ases by regulated sources. The regulations are to take effect three years after promulgation.

H.R. R EP

. No. 101

- 490, at 334.

The Chemical Disaster Rule is the most recent outgrowth of Congress’s effort in the 1990 Amendments to ensure adequate protect ions against highly dangerous accidental
releases of chemicals. By Executive Order No. 13,650, Improving Chemical Facility Safety and Security

, 78 Fed. Reg. 48,029 (Aug. 1, 2013), issued in the wake of serious disasters at chemical plants, EPA and several other agencies were directed to “improve chemical facility safety and security in coordination with owners and operators,” id. § 1, and EPA was instructed to strengthen its accident prevention regulations, id. §§ 2

– 7. EPA issued a notice of proposed rule making in March 2016, held public hearings , and received written comments

. The final rule revised and strengthened accident prevention, emergency response, and public information disclosure requirements. Chemical Disaster Rule, 82 Fed. Reg. at 4595 ;

see supra Part [I.B] . It was to take effect in 30 days, on March 14, 2017, with different compliance dates for some provisions in order to accommodate industry needs. Chemical Disaster Rule, 82 Fed. Reg. at 4594, 4678.

EPA brought this regulatory action to a halt. Section 7607(d)(7)(B) provides:

If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within such time or if the grounds for25

such objection arose afte r the period for public

comment . . . and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for
reconsideration of the rule . . . . Such reconsideration shall not postpone the effectiveness of the rule. The
effect iveness of the rule may be stayed during such reconsideration, however, by the Administrator or the
court for a period not to exceed three months

.

42 U.S.C. § 7607(d)(7)(B) (emphasis added). In the Delay Rule, EPA interpreted that provision as “generally allow[ing] the EPA to set effective dates as appropriate unless other provisions of the CAA control.” Delay Rule, 82 Fed. Reg. at 27,135. As an initial matter, EPA previously interpreted that provision as establishing the CAA’s exclusive mechanism for

s taying the effectiveness of a final rule pending
reconsideration

. Se e EPA Mem. i n Opp. t o Sierra Club’s Mot. for Summ. J. at 11, Sierra Club v. Jackson , No. 1:11

- cv

- 01278 (D.D.C. Aug. 25, 2011 ). In any event, t here is no textual basis for EPA’s current i nterpretation

.

T he court has explained that Section 7607(d)(7)(B) “authorizes the agency to grant a stay during ‘ such reconsideration,’ a term that quite obviously refers back to the reconsideration EPA ‘shall’ undertake when someone presents an objection of ‘central relevance’ that was ‘impracticable’ to raise during the period for public comment.” Clean Air Council

, 862 F.3d at 9 (emphasis added) (quoting 42 U.S.C. § 7607 (d)(7)(B) )

. Regardless whether the three

- month stay authorized by Section 7607(d)(7)(B) is cabined by the word “such

, ” t he Delay Rule is the functional equivalent of a stay
under that section. It is based on industry petitions for
reconsideration and is the direct outgrowth of the three

- month stay EPA issued under Section 7 607(d)(7)(B). In the Delay2 6

Rule, EPA makes no finding that a 20

- month delay is required for regulated parties over and above the delayed compliance dates in the Chemical Disaster Rule. Instead, EPA repeatedly
states that it was using the 20 months merely to reconsider concerns expressed by industry and unidentified “ other issues that may benefit from additional comment.” Del ay Rule, 82 Fed. Reg. at 27,133, 27,135, 27,140. It has neither adopted industry concerns as its own nor proposed substantive chang es
to the programmatic requirements of the Chemical Disaster
Rule. Because the Delay Rule is for all intents and purposes a Section 7607(d)(7)(B) stay pending reconsideration for EPA to
decide what it wants to do , rather than a substantive amendment to tools and programs i n the Chemical Disaster Rule, it cannot delay the effective date beyond three months.

Nor is the Delay Rule authorized by Section 7412(r)(7). Section 7412(r) (7) is a comprehensive accident preventi on regime affording EPA broad discretion as to regulatory tools

, albeit with multiple requirements. S ubparagraph (A) references types of substantive actions that EPA may require by regulation: “release prevention, detection, and correction requirements wh ich may include monitoring, record

- keeping, reporting, training, vapor recovery, secondary containment, and other design, equipment, work practice, and operational requirements.” Once EPA makes a substantive regulatory
choice

— to add, modify, or subtract requirements

— EPA must set an effective date for that choice that will “ assur[e] compliance as expeditiously as practicable.” Subparagraph (B) requires EPA to determine that such regulations “provide, to the greatest extent practicable, for the preventi on and detection of accidental releases of regulated substances.” And subparagraph (E) provides that the three

- month time limit of Section 7607(d)(7)(B) applies to regulations promulgated pursuant to Section 7412(r)(7). R eading the plain text makes
clear tha t Congress is seeking meaningful , prompt action by27

EPA to promote accident prevention . In this way , the framework of Section 7412(r)(7) does not differ significantly from the “highly circumscribed schedule ” analyzed in Reilly

, 976 F.2d at 41, where the cou rt held that EPA’s general rulemaking authority under the CAA could not “trump the specific provisions of the Act,” id. Section 7412(r)(7) contains
several “highly c ircumscribed” timing components. See S.
R EP

. No. 101

- 228, at 237

– 39.

The Delay Rule is not the type of substantive amendment authorized by Section 7412(r)(7). EPA has interpreted that section as according it “flexibility to make a rule effective with no specific outside date beyond that which ‘ assur [es] compliance as exped itiously as practicable

. ’” Delay Rule, 82 Fed. Reg. at 27,135. T he Delay Rule states that “[i]n light of EPA’s commitment to take further regulatory action in the near future , with the potential for a broad range of rule
revisions

. . . and the substantial resources required,” “several industry trade associations” that had submitted “comment agreed that the 20

- month delay in the effectiv e date would be as expeditious[] as practicable.” Id. (emphasis added). But EPA merely references arguments without standing behi nd any
of the m

. By its own repeated admissions in the preamble to the Delay Rule, EPA has made no substantive decisions demanded by Section 7412(r)(7). The preamble reveals no attempt by
EPA to consider how muc h time industry needs to comply, or why 20 m onths, as opposed to some other period of delay, are
necessary. Nor does it engage with EPA’s determinations and findings in the Chemical Disaster Rule with respect to compliance dates

. See 82 Fed

. Reg. at 4675

– 80 (Part VIII). Nor does EPA claim to have changed those findings or taken any action with respect to them. Instead, EPA posits instead that the Delay Rule is designed to allow it time to rethink “the difficulties of compliance planning” while also claiming it is not revisiting the compliance dat es or the rationale underlying28

them. Del ay Rule, 82 Fed. Reg. at 27,137. B ut see id. at 27,144
n.23

. To the extent EPA offers any reasonin g

— namely, that “[a] delay of 20 months is a reasonable length of time ” for it

“ to engage in the process of revisiting issues in the underlying [Chemical Disaster Rule],” id. at 27,136

— that reasoning does not relate to what is “practicable” for compliance by regulated

sources ; its explanation relates to its own “unidentified, new ‘p olicy preferences’ and the mere fact of reconsideration.”
C mty . Pet. Br. 42 (quoting Delay Rule, 82 Fed. Reg. at 27,136)

.

This makes a mockery of the statute. The Delay Rule does not have the purpose or effect of “ as sur[ing] compliance” with
Section 741 2(r)(7); it is calculated to enable non

- compliance. The Delay Rule removes both immediate and future obligations under the Chemical Disaster Rule, authorizing regulated
facilities t o ignore all pre

- 2019 deadlines . Delay Rule, 82 Fed. Reg. at 27,142, 27,1 44 n.23. Read as a whole, Section 7412(r)(7) ’s effective date provision is intended to provide a short window of notice before facilities are required to comply or prepare to comply with agency regulations. See 42 U.S.C. § 7412(r)(7)(E). In addition, th e Delay Rule does not demonstrate, or even acknowledge, that EPA considered Section 7412(r)(7)’s statutory objecti ves, namely, to “ prevent

acc idental releases,” to “minimize . . . consequences of any such release,” to “protect human health and the environm ent,” and “to include procedures and measures for emergency response after an accidental release.” Id. § 7412(r)(1), (r)(7)(A), (r)(7)(B). The Delay Rule undermines these objectives without explaining why implementation delay was

necessary; i t refers onl y to the fact of EPA’s own reconsideration. By contrast with EPA’s final, record

- based determinations in setting the Chemical Disaster Rule’s effective and compliance dates, EPA makes no findings of its own in the Delay Rule. It refers merely to alleged “security risks” and other hypotheticals raised by industry without29

endorsing those findings or concerns

. See , e.g. , Delay Rule, 82 Fed. Reg. at 27,136, 27,138, 27,140

– 41. In deed, EPA explicitly concede d that it “has not concluded [the Chemical Disaster Rule] would increase such risks.” Id. at 27,141. T he Delay Rule thus contains no provisions that advance or accomplish these goals, but instead delays these objectives contrary to EPA’s prior determinati ons in a rulemaking

.

By delaying the effective date, EPA has delayed compliance, reduced or eliminated the lead

- up time to achieve the compliance that EPA had earlier found necessary, and thus
has del ayed life

- saving protections. EPA may not employ delay tactics to effectively repeal a final rule while sidestepping the statutorily mandated process for revising or repealing that rule on the merits. EPA states that it “does not wish to cause confusion among the regulated community and local responders by r equiring these parties to prepare to comply with, or in some cases, immediately comply with, rule provisions that might be changed during the subsequent reconsideration.”
I d. at 27,139 . But this “confusion” stem s solely f ro m the
confusion EPA has caused by the almost two

- years’ reconsideration it desires in order to decide what it wants to do,

not compliance concerns re levant to regulated facilities’ implementati on of the Chemical Disaster Rule. That is not a basis for delaying protections. That the pre

- existing rule remains in effect during the delay period does not show the Delay Rule satisfie s Section 7412(r)(7). In promulgating the Chemical Disaster Rule, EPA had found, and the record shows, that there was a need for improvements to protect worker a nd community safety, and to reduce facilities, injuries, life disruption, and other harm. Chemical Disa ster Rule, 82 Fed. Reg. at 4599

– 600.

Without regard to context, purpose , or history, EPA has equated its authority to amend a final rule pursuant to30

ap plicable statutory requirements with authority to delay a final rule merely because EPA is considering revising it. Delay Rule, 82 Fed. Reg. at 27,133 , 27,136, 27,138 . The overarching statutory purpose and design of the CAA, as well as the statutory cont ext of Section 7412(r)(7) and Section 7607(d)(7)(B), reject an interpretation that EPA can further delay a final rule for reconsideration when it has neither explained it has reached a different conclusion about preventing accidental releases nor offered n ew evidence to support a different conclusion

, but has delayed a final rule based on speculation about future amendments. That does not conform to the carefully designed regime Congress envisioned in the 1990 Amendments. Congress has twice emphasized the finality of CAA rules by prohibiting reconsideration from delaying a final rule. Section 7607(d)(7)(B) provides a strict
limit of three month s on stays of effective dates pending reconsideration , and Section 7607(b)(1) provides that a petition for judicial r eview “shall not a ffect the finality of such rule

. . . and shall not postpone the effectiveness of such rule.” These provisions ( read in light of the history of the 1990 Amendments) show Congress intended EPA to act with appropriate dispatch , not to dela y protections. EPA points to nothing that would allow a misuse of its substantive rulemaking authority to evade these limits

.
EPA’s interpretation of its delay authority is not reasonable because it has no stopping point. Nothing in the
text, context, s tructure

, or history of the CAA supports interpreting Section 7412(r)(7) as allowing delays akin to those that prompted Congress to adopt the 1990 Amendments in order to spur EPA action. As Community Petitioners note, the absence of a date from the “pract icable” clause in Section 7412(r)(7)(B) does not reveal a lack of legislative urgency for effectiveness and compliance, but rather reflects Congress’s acknowledgement that, depending on EPA’s regulatory31

choices, some flexibility in timing might be required

. See Cmty. Pet. Br. 44 (citing S. R EP

. No. 101

- 228

, at 234

– 35, 245). EPA may not “substitut[e] [ its ] desires for the p lain text” of the
Act. New Jersey v. EPA , 517 F.3d 574, 582

– 83 (D.C. Cir. 2008). Nor may it render illusory a limitation like Section 7607(d)(7)(B), which is designed to limit EPA’s authority and facilitate judicial review by assuring finality and creating an agency record. See S. R EP

. No. 101

- 228, at 372.

For these reasons, t he Delay Rule must be vacated. Our holding is narrow

, as our analysis makes clear. In the Delay Rule, EPA has neither substantively amended

— nor proposed

a ny substantive amendment s to

— the Chemical Disaster Rule

, but instead seeks to delay that rule pending reconsideration during which it decides what it wants to do . EPA retains authority under Section 7412(r)(7) to substantively amend the programmatic requirements of the Chemical Disaster Rule

, and pursuant to that authority

, revise its effective and compliance dates, subject to arbitrary and capricious review.

IV.

Moreover, EPA’ s promulgation of the Delay Rule was arbitrary and capricious. Although “ [ t ] he scope of review under the ‘arbitrary and c apricious’ standard is narrow . . . the agency must examine the relevant data and articulate a
satisfacto ry explanation for its action including a rational explanation of the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto

. Ins.
Co. , 463 U.S. 29, 43 (1983) (quotation marks omitted)

. When an agency reverses i tself, it “must show that there are good reasons for the new policy,” but it need not show that “the
reasons for the new policy are better than the reasons for the old one.” FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 515 (2009) (emphasis in origi nal). However, if the “new policy32

rests up on factual findings that contradict those which underlay its prior policy,” it must provide “a reasoned explanation

. . . for disregarding facts and circumstances that underlay or were engendered by the prior poli cy.” Id. at 515

– 16; see also Encino Motorcars, LLC v. Navarro

, 136 S. Ct. 2117, 2126 (2016) (“[A]n ‘unexplained inconsistency’ in agency policy is ‘a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.’” (quoting Nat’l
Cable & Tel ecomm . Ass’n v. Brand X Internet Servs. , 545 U.S. 967, 981 (2005)) )

.

EPA’s explanations for its changed position on the appropriate effective and compliance dates are inadequate
under Fox and State Farm

, and the refore arbitrary and capricious

, for several reasons

. See 42 U.S.C. § 7607(d)(9).

First

, EPA repeatedly justifies the 20

- month delay as providing time for taking and considering public comment on the Chemical Disaster Rule and any potential revisions or
rescission thereof. But EPA nowhere explains how the effectiveness of the rule would prevent EPA from undertaking
notice and comment or other tasks for reconsideration, why a delay is necessary to EPA’s process, or how the Chemical Disaster Rule becoming effective on schedule would otherwise impede its ability to reconsider that rule. See Public Citizen v. Steed , 733 F.2d 93, 102 (D.C. Cir. 1 984) (“Without showing that the old policy is unreasonable, for [the agency] to say that no policy is better than the old policy solely because a new policy might be put into place in the indefinite future is as silly
as it s ounds.” (emphasis in original)). Agencies regularly
reconsider rules that are already in effect. But as the Second Circuit has pointed out, “ a decision to reconsider a rule does not simultaneously convey authority to indefinitely delay the existing rule pending that reconsideration.” NRDC v. NHTSA

, 894 F.3d 92, 111

– 12 (2d Cir. 2018) (citing Clean Air Council

,33

862 F.3d at 9). Thus

, the mere fact of reconsideration , alone,
is not a sufficient basis to delay promulgated effective dates specifically chosen by EPA on the basis of public input and
reasoned explanation , particularly where the statute requires the agency to “assur[e] compliance as expeditiously as practicable

. ” 42 U.S.C. § 7412(r)(7)(A). Further, under the plain text of Section 7412(r) (7)

, the timeframe for effective or compliance dates must be justified in terms of “ assuring compliance as expeditiously as practicable,” meaning that EPA must explain why its proposed timeline is practicable for regulated parties to comply with the rule expeditiously

— not for the agency to engage in the regulatory process. Id. (emphasis added).

Second

, nothing in the Delay Rule explains EPA’s departure from its stated reasoning in setting the original effective date and compliance dates. In promulga ting the Chemical Disaster Rule, EPA considered comments specifically about the rule’s proposed effective date and the compliance timeline for various requirements, and explained why it adopted or rejected the comments. See Chemical Disaster Rule, 82 Fed. Reg. at 4675

– 78

. For example, EPA “received comments supporting the proposed one

- year compliance date for emergency response coordination activities,” and “EPA agree[d] with commenters and [was] finalizing a one

- year compliance date for emergency respons e coordination activities.” Id. at 4,6 77 . As another example, one commenter objected to a four

- year compliance date for

emergency

- response exerc ises and argued the deadline should be one year; EPA disagreed because four years would “allow owners and operat ors to develop an exercise program,” train personnel, and familiarize themselves with guidance EPA expected to develop after promulgation of the Chemical
Disaster Rule. Id.34

The Delay Rule does not explain its departure from EPA’s previous conclusions reg arding the appropriate and practicable timeline for implementing the Chemical Disaster Rule

. Nor does it explain why the detailed factual findings regarding the harm that would be prevented upon implementation of the
Chemical Disaster Rule are now only “speculative

, ” id

. at 27,139 , or why the entire rule must be delayed wholesale despite its many different provisions with different effective
and compliance dates

. Although EPA need not show that “the
reasons for the new policy are better than the reasons for the old one,” it must provide “a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Fox

, 556 U.S. at 515

– 16

. EPA has not done so. Instead, EPA attempts to minimiz e the impact o f the Delay Rule by assert ing that by merely delaying
the overall effective date until February 2019 , it leaves the major compliance dates unaffected. Delay Rule, 82 Fed. Reg.

at 27,137 (“This rule does not impact compliance dates except
for those dates t hat would be triggered prior to February 2019.”). This assertion is incompatible with the EPA’s

statement in the Delay Rule

— and the common

- sense conclusion

— that “[a] delay of effectiveness will allow EPA time for a comprehensive review of objections to the [Chemical Disaster Rule] without imposing the rule’s substantial compliance and implementation resource burden when the outcome of the review is pending.” Id. at 27,136. E PA and the Industry Intervenors contend that the Delay Rule has no significa nt costs because it merely maintains the “status quo,”

as regulated sources are not required to comply with all but one “major” provision until 2020. Putting aside EPA’s concession that the Delay Rule immediately delays multiple “minor” provisions and wou ld delay the “major” first

- responder coordination provisions, the baseline for measuring the impact of a change or rescission of a final rule is the requirements of the rule itself, not the world as it would have been had the rule35

never been promulgated. See Consarc Corp. v. OFAC , 71 F.3d 909, 913 (D.C. Cir. 1995) (“The legal definition of status quo

ante [is]

. . . the last uncontested status which preceded the pending controversy.” (quotations marks omitted)). The status quo would be a Chemical Disaster Rule that went into effect on March 14, 2017, with the ongoing compliance efforts by regulated parties to meet the compliance deadlines set in that
rule.

EPA cannot have it both ways. Either there would be “substantial compliance and implementation” e fforts by regulated parties absent the Delay Rule, or the rule has no effect on compliance requirements and does nothing more than maintain the status quo with “speculative but likely
minimal

. . . foregone benefits.” Delay Rule, 82 Fed. Reg. at 27,139

. Therefore, EPA has failed to rationally explain its departure from its previous conclusions about appropriate compliance periods that it reached after specifically soliciting and considering comments on the subject

. See NRDC, Inc. v.
EPA , 683 F.2d 752, 76 0

– 61 ( 3d Cir. 1982) (“By postponing the effective date of the amendments, EPA reversed its course of action up to the postponement. That reversal itself constitutes a danger signal.”).

Third

, contrary to EPA’s statement in the Delay Rule that “the timing ” of a “finding by the Bureau of Alcohol, Tobacco,
and Firearms

. . . that the West Fertilizer explosion was caused by arson” rather than an accident supports delay, that is not a reasoned basis for delaying the entire Chemical Disaster Rule

. See 82 Fed. Reg. at 27

, 137

– 38. EPA cited many more incidents than just the West, Texas disaster throughout the development and promulgation of the rule

. See, e.g. , Chemical
Disaster Rule NPRM, 79 Fed. Reg. at 44,608 (“An April 8, 2011 explosion at [a plant in] Hawaii killed five workers who were disposing of fireworks.”); id. at 44,616 (“In October36

2007, five contractor workers were killed [at a plant] in Georgetown, Colorado, when a fire occurred inside a
tunnel

. . . . The CSB found that inadequate contracto r safety practices and oversight contributed to the accident.”); id. at 44,618 (citing the “CSB’s findings concerning a lack of rigorous compliance audits in the 2005 BP Texas City Refinery explosion” that killed fifteen plant workers); Chemical Disaster
R ule, 8 2 Fed. Reg. at 4 599 (citing, in a section titled “Events Leading to This Action, ” “[i]n addition to the tragedy

. . . in West, Texas,” “an explosion and fire at the Tesoro Refinery in Anacortes, Washington,” a fire “at the Chevron Refinery in Richmond, California,” and “a fire and explosion at Williams Olefins in Geismar, Louisiana.”)

. E ven were the court to agree for purposes of argument that the cause of the West, Texas disaster being arson is relevant to some of the accident

prevention pro visions of the Chemical Disaster Rule, it is irrelevant to the emergency

- response and information

- sharing provisions, including those that have indisputably be en delayed from the original March 14, 2018 effective date. Given that
twelve of the fifteen fat alities in the West, Texas disaster were local volunteer firefighters and other first responders, this
would be a fairly weak explanation for delaying provisions that
EPA previously determined would hel p keep first responders

sa fe and informed about emerge ncy

- response planning.

Because EPA has not engaged in reasoned decisionmaking, its promulgation of the Delay R ule is arbitrary and capricious

.

* * *

Accordingly, t he court grants the petitions for review and

vacates the Delay Rule.