United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 16, 2018 Decided August 17, 2018

No. 17-1155

AIR ALLIANCE HOUSTON, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY AND ANDREW 

WHEELER, ACTING ADMINISTRATOR, U.S. ENVIRONMENTAL 

PROTECTION AGENCY,

RESPONDENTS

UNITED STEEL, PAPER AND FORESTRY, RUBBER,

MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE 

WORKERS INTERNATIONAL UNION, AFL-CIO-CLC, ET AL.,

INTERVENORS

Consolidated with 17-1181

On Petitions for Review of a Final Rule of the

United States Environmental Protection Agency
2

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 Oregon, Paul Garrahan, Attorney-inCharge, 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 Attorney 

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 the 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, Office 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 them 
3

on the briefs were Gordon E. Sommers 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 were 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 him 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 Advocacy 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, Jeffrey 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, 

Office 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 General, 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 Meredith, 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, Attorney 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 

Deputy 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: ROGERS, KAVANAUGH*and WILKINS, Circuit 

Judges.

Opinion for the court filed PER CURIAM.

 

*

Judge Kavanaugh was a member of the panel at the time 

the case was argued but did not participate in this opinion.
5

PER CURIAM: This appeal presents the question whether 

the Environmental Protection Agency (“EPA”) had authority 

under Sections 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 provision. 

EPA’s action was arbitrary 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 CONG.REC. S16,899, S16,926–27 (1990) (Conf. Rep.). 

Section 112(r) of the 1990 Amendments, “Prevention of 

Accidental Releases,” provides that “[i]t shall be the objective 

of the regulations 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 extremely 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 the 
6

consequences of accidental releases and proposing corrective 

steps to make chemical [industrial processes] as safe and free 

from risk of injury as is possible.” 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 “initiate 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 

recommendation 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 release 

prevention, detection, and correction requirements which may 

include monitoring, record-keeping, reporting, training, vapor 

recovery, secondary containment, and other design, equipment, 

work practice, and operational 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 releases,” 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 stationary sources to implement a Risk Management 

Plan (“RMP”) to “detect and prevent or minimize accidental 

releases . . . and to provide a prompt emergency response to 
7

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 public. 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 raise such 

objection within [the 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 shall 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 period not to exceed three months.’” Clean Air Council, 862 

F.3d at 5 (quoting § 7607(d)(7)(B)).

B.

EPA first promulgated accidental 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 

organizations, unions, and health workers petitioned EPA for a 

rulemaking under Section 7412(r)(7) to “require the use of 

inherently safer technologies, 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 April 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 MoureEraso, Chairperson of the U.S. Chemical Safety Board). The 

West, Texas disaster involved a fire and explosion that crushed 

buildings and sent projectiles into neighboring communities, 

killing twelve first responders 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 issued an executive 

order establishing a Chemical Facility Safety and Security 

Working Group co-chaired by the EPA Administrator and the 

Secretaries of Labor and Homeland Security. Exec. Order No. 

13,650 § 2, Improving Chemical Facility Safety and Security,

78 Fed. Reg. 48,029 (Aug. 1, 2013). The Executive Order 

directed that within 90 days,

[T]he Administrator of EPA and the Secretary of 

Labor shall review the chemical hazards covered by 

the 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 that 
9

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, Section 

[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 promulgation 

of accidental release prevention requirements under that 

section. EPA received over 100,000 responses, 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 accidental 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 and mitigating chemical 

accidents . . . [,] major incidents, such as the West, Texas 

explosion, highlight 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 of 
10

American workers and communities,” and proceeded to discuss 

several recent explosions and fires that resulted in death, injury, 

and property damage to workers, 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 million 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 rule.” 

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 impacts 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 Prevention Requirements: Risk 

Management Programs Under the Clean Air Act (“Chemical 

Disaster Rule”), 82 Fed. Reg. 4594 (Jan. 13, 2017). The final 

rule revised dozens of Section 7412(r)(7) requirements in three 

major areas: (1) accident prevention, including expanded postaccident 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 

intensive incident-response exercises; and (3) public 
11

information disclosure, including public disclosure of safety 

information and public-meeting requirements. 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. The final rule set an overall effective date 

of March 14, 2017, sixty days after promulgation. Id. at 4594. 

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 4678. The 

requirements for emergency response exercises, public 

information-sharing and post-accident public meetings, thirdparty audits, more rigorous post-incident analyses, and safer 

technology requirements became effective 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 Chemical Disaster Rule

three times. On 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 rules. Delay 

of Effective Date for 30 Final Regulations Published by the 

Environmental Protection Agency Between October 28, 2016

and January 17, 2017, 82 Fed. Reg. 8499-02 (Jan. 26, 2017). 

This initial delay implemented a January 20, 2017 

memorandum from then-White House Chief of Staff Reince 

Priebus directing agency heads 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 and 
12

Agencies: Regulatory Freeze Pending Review (Jan. 20, 2017)

(“Priebus Memorandum”). The Priebus Memorandum also 

directed agency heads to “consider proposing for notice and 

comment a rule to delay the 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 ninety 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, on April 3, 2017, EPA 

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 Prevention 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 Chemical 

Disaster Rule “as provided for in [Section 7607(d)(7)(B)],” and 

that EPA issued a three-month stay under that section because 

“the criteria for reconsideration ha[d] been met for at least one 
13

of the three objections.” Id. at 27,134–35. However, EPA 

explained, 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 EPA, 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 during 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-responder 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 opportunity to comment on other issues . . . . By 

finalizing these provisions immediately, EPA would not be 

allowing the public an additional opportunity 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 required 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 Sections 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 Petitioners”), and a number of

states (“State Petitioners”). The United Steel, Paper and 

Forestry, Rubber, Manufacturing, Energy, Allied Industrial 

and Service Workers International 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, intervened 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. Defs. of Wildlife, 504 
15

U.S. 555, 560–61 (1992)). “An allegation of future injury may 

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. Driehaus, 134 S. 

Ct. 2334, 2341 (2014) (quoting Clapper, 568 U.S. at 414 n.5). 

The party asserting standing must 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 sue 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 are 

germane to their organizations’ purposes; 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 [standing] 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 is germane to Community 

Petitioners’ organizational purposes. Nor do they argue that 

the participation of individual members is necessary. The 

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. 

Even if the only tangible impact of the Delay Rule were 

delay of the Chemical Disaster Rule’s first-responder 

provisions, the potential harm to members of United 

Steelworkers 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 Steelworkers’ members work 

in 350 covered chemical plants in the United States, and United 

Steelworkers-represented “refineries account for almost twothirds of United States production. No single company, and no 

other union, either operates, or represents the workers in more 

plants that are the subject of the [RMP] regulations than” 

United Steel. Nibarger Decl. ¶ 2 (DEC. 96). Several 

declarations from United Steelworkers members describe

hazards that they face from accidental releases as plant workers 

and that their families face as residents of communities close 

to the covered facilities. See, e.g., Kelley Decl. ¶¶ 3–16 (DEC. 

21–24); Lilienfeld Decl. ¶¶ 1–11 (DEC. 56–58); Nibarger 
17

Decl. ¶¶ 1–20 (DEC. 96–99). For example, Ben Lilienfeld, a 

United Steelworkers member in Baytown, Texas, avers that:

[A] butadiene release in 2015 at Shell Deer Park 

Refinery & Chemical in Deer Park, Texas, put our 

members at risk . . . . At the LyondellBasell facility 

in Houston, Texas, multiple fires have occurred over 

the last several years causing releases. The same risks 

that caused 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 will remain on the front 

line.

Lilienfeld 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 Steelworkers’ members, and EPA found that the

Chemical Disaster Rule would reduce the kinds of accidents 

that Lilienfeld and the other United Steelworkers 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. 

Reg. at 4597; EPA Activities Under EO 13650: Risk 

Management Program (RMP) Final 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 harms than 
18

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 WRIGHT &

MILLER, FED. PRAC. & PROC. § 3531.11.1, Government 

Standing – States (3d ed.). The Supreme Court has recognized 

“[t]wo kinds of nonsovereign interests” for state standing 

purposes: proprietary interests 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).

The Delay Rule affects State Petitioners’ proprietary 

interests due to the expenditures states have previously made

and may incur again when responding to accidental releases 

during the delay period. State Pet. Br. 22–26. Hundreds of 

covered industrial facilities are located in State Petitioners’ 

territory. 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. State Pet. Br. 26; Chemical Disaster 

Rule, 82 Fed. Reg. at 4599; 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 

safer technologies had been employed”). Monetary 

expenditures to mitigate and recover from harms that could 

have been prevented absent the Delay Rule are precisely the 

kind of “pocketbook” injury that is incurred by the state itself. 

See Snapp, 458 U.S. at 602. Because State Petitioners have 

demonstrated their independent proprietary interests in 
19

avoiding chemical releases in their territory sufficient to 

support standing, the court need not reach the alternative

argument that Congress has abrogated the prudential bar on 

state parens patriae standing 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. 

Priebus Memorandum, 82 Fed. Reg. 8499-02 (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 

preamble 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 other 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 court reviews “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

that 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 the 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 postpone 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 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 27,138 (“EPA concurs with 

commenters to the extent that they argue for finalizing the 

proposed 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.”). The 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. But regardless 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 reconsideration,” 42 U.S.C. 
21

§ 7607(d)(7)(B), and this court “must give effect to the 

unambiguously expressed 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 makes 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), it is 

well established that an agency may not circumvent specific 

statutory limits on its actions by relying on separate, general 

rulemaking authority. As we explained in NRDC v. Reilly, a 

“general 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, “the specific governs the 

general,” and the more specific regulation applies). Similarly, 

in Halverson v. Slater, this court held that the Secretary of 

Transportation’s general statutory authority to delegate “duties 

and powers of the Secretary to an officer or an employee of the 

Department” was trumped by a more specific provision that the 

“Secretary may delegate the duties and powers conferred by 

this subtitle . . . to any officer, employee, or member of the 

Coast Guard.” 129 F.3d 180, 183–84 (D.C. Cir. 1997). This 

court rejected the Secretary’s argument that he could use his 

general delegation authority absent an express restriction on 
22

that 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 

specifically 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 invoking 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 effect.” Halverson, 129 F.3d

at 189 (quoting Am. Fed’n of Gov’t Emps. v. FLRA, 798 F.2d 

1525, 1528 (D.C. Cir. 1986)).

The court’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 in 1970 to 

encourage and promote “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 to 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 pollutants

(“HAPs”), setting standards for mobile sources, and issuing 

rules for new stationary sources. In fact, statutory 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. REP. No. 101-490, 

at 144 (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 with 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.

REP. No. 101-228, at 237 (Dec. 20, 1989). The section-bysection 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 Secretaries of Transportation 

and Labor . . . regulations to provide, to the greatest 
24

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 releases by regulated sources. The 

regulations are to take effect three years after 

promulgation.

H.R. REP. 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 protections 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 rulemaking 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 for 
25

such objection arose after 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 

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.

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 

staying the effectiveness of a final rule pending 

reconsideration. See EPA Mem. in Opp. to 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, there is no textual basis 

for EPA’s current interpretation. 

The 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,” the 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 7607(d)(7)(B). In the Delay 
26

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.” Delay Rule, 82 

Fed. Reg. at 27,133, 27,135, 27,140. It has neither adopted

industry concerns as its own nor proposed substantive changes 

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 in 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 prevention 

regime affording EPA broad discretion as to regulatory tools, 

albeit with multiple requirements. Subparagraph (A) 

references types of substantive actions that EPA may require 

by regulation: “release prevention, detection, and correction 

requirements which 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 prevention 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). Reading the plain text makes 

clear that Congress is seeking meaningful, prompt action by 
27

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 court 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 circumscribed” timing components. See S.

REP. 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 expeditiously as practicable.’” Delay Rule, 82 

Fed. Reg. at 27,135. The 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 effective date would be 

as expeditious[] as practicable.” Id. (emphasis added). But 

EPA merely references arguments without standing behind any 

of them. 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 much time industry needs to comply, or 

why 20 months, 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 dates or the rationale underlying 
28

them. Delay Rule, 82 Fed. Reg. at 27,137. But see id. at 27,144 

n.23. To the extent EPA offers any reasoning — 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 

‘policy preferences’ and the mere fact of reconsideration.” 

Cmty. 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 “assur[ing] compliance” with 

Section 7412(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 to ignore all pre-2019 deadlines. Delay Rule, 82 Fed. 

Reg. at 27,142, 27,144 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, the Delay Rule does not 

demonstrate, or even acknowledge, that EPA considered 

Section 7412(r)(7)’s statutory objectives, namely, to “prevent 

accidental releases,” to “minimize . . . consequences of any 

such release,” to “protect human health and the environment,” 

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; it refers only 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 without 
29

endorsing those findings or concerns. See, e.g., Delay Rule, 82 

Fed. Reg. at 27,136, 27,138, 27,140–41. Indeed, EPA 

explicitly conceded that it “has not concluded [the Chemical 

Disaster Rule] would increase such risks.” Id. at 27,141. The 

Delay Rule thus contains no provisions that advance or 

accomplish these goals, but instead delays these objectives 

contrary to EPA’s prior determinations 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 delayed 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 requiring these parties to prepare to comply with, 

or in some cases, immediately comply with, rule provisions 

that might be changed during the subsequent reconsideration.” 

Id. at 27,139. But this “confusion” stems solely from 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 relevant to regulated facilities’ 

implementation 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 satisfies 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 and 

community safety, and to reduce facilities, injuries, life 

disruption, and other harm. Chemical Disaster 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 to 
30

applicable 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 context 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 new 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 months on stays of effective dates pending 

reconsideration, and Section 7607(b)(1) provides that a petition 

for judicial review “shall not affect 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 delay 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, structure, 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 “practicable” 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 regulatory 
31

choices, some flexibility in timing might be required. See 

Cmty. Pet. Br. 44 (citing S. REP. No. 101-228, at 234–35, 245). 

EPA may not “substitut[e] [its] desires for the plain 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. REP. No. 101-228, at 372. 

For these reasons, the 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 

any substantive amendments 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 capricious’ standard is narrow . . . the 

agency must examine the relevant data and articulate a 

satisfactory 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 itself, 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 original). However, if the “new policy 
32

rests upon 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 policy.” 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 & Telecomm. 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 therefore 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. 1984) (“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 sounds.” (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 promulgating 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 response 

coordination activities.” Id. at 4,677. As another example, one 

commenter objected to a four-year compliance date for 

emergency-response exercises and argued the deadline should 

be one year; EPA disagreed because four years would “allow 

owners and operators 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 regarding 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 minimize the 

impact of the Delay Rule by asserting 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 that 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. EPA and the 

Industry Intervenors contend that the Delay Rule has no 

significant 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 would 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 rule 
35

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” efforts 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, 760–61 (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 October 
36

2007, five contractor workers were killed [at a plant] in 

Georgetown, Colorado, when a fire occurred inside a 

tunnel . . . . The CSB found that inadequate contractor 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 

Rule, 82 Fed. Reg. at 4599 (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.”). Even 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 accidentprevention provisions of the Chemical Disaster Rule, it is 

irrelevant to the emergency-response and information-sharing 

provisions, including those that have indisputably been delayed 

from the original March 14, 2018 effective date. Given that 

twelve of the fifteen fatalities 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 help keep first responders 

safe and informed about emergency-response planning.

Because EPA has not engaged in reasoned 

decisionmaking, its promulgation of the Delay Rule is arbitrary 

and capricious.

* * *

Accordingly, the court grants the petitions for review and 

vacates the Delay Rule.