Sierra Club v. EPA: A Wider Doctrine on the Time to File Rulemaking Challenges?
In an interesting opinion issued last Friday, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit held that a set of 2006 revisions to certain Clean Air Act rules “constructively reopened” the rules to collateral attack.
The Clean Air Act provides that “[a]ny petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register.” In the case decided on Friday, the EPA argued that the Sierra Club had waived its challenge to certain exemptions from the Clean Air Act emission standards by not challenging the exemptions when they were first promulgated in 1994.
The Sierra Club argued, and a majority of the Court agreed, that the agency’s later revisions to the exemptions “constructively reopened” the rulemaking so as to restart the time period for a proper court challenge. Circuit Court Judith W. Rogers wrote:
Petitioners recount, and EPA does not dispute, that: To avoid creating a “blanket exemption from emission limits,” EPA’s 1994 rule required that (1) sources comply with their [startups, shutdowns, and malfunctions (“SSM”)] plans during periods of SSM; (2) SSM plans be reviewed and approved by permitting authorities like any other applicable requirement; (3) SSM plans be unconditionally available to the public, which could participate in evaluating their adequacy in the permit approval process; and (4) SSM plan provisions be directly enforceable requirements. In the rulemakings challenged here, however, EPA has eliminated all of these safeguards. SSM plans are no longer enforceable requirements, and EPA has expressly retracted the requirement that sources comply with them. EPA also has eliminated any requirement that SSM plans be vetted for adequacy and any opportunity for citizens to see or object to them.Dissenting, Senior Circuit Judge A. Raymond Randolph argued that the “constructive reopening” doctrine as announced by the court majority in this case widened the doctrine to new and unwise limits.
Shifting from a regulatory scheme based on a mandatory SSM plan that was part of a source’s Title V permit, which is subject to prior approval with public involvement, to a regulatory scheme with a non-mandatory plan providing for no such approval or involvement but only after-the-fact reporting changed the calculus for petitioners in seeking judicial review, and thereby constructively reopened consideration of the exemption from section 112 emission standards during SSM events.
Of course an agency may give notice and ask for comment on whether an existing regulation should be modified or repealed or retained, or it may indicate in response to comments that it has reconsidered the regulation. Or an agency may give its regulation new significance by altering other regulations incorporating it by reference. In any one of these situations the 60-day period would begin to run again. But nothing of the sort occurred here. According to Sierra Club, EPA’s rulemakings in 2002, 2003, and 2006 rendered enforcement of the 1994 startup, shutdown, and malfunction regulations more difficult. Even if true, that could hardly have amounted to agency “action” re-promulgating the 1994 regulations, which is what § 7607(b)(1) requires as a prerequisite for judicial review….The panel’s complete set of analyses are accessible here.
In Kennecott Utah Copper Corp. v. Dep’t of Interior, 88 F.3d 1191, 1214 (D.C. Cir. 1996), regulated industries sought judicial review of an allegedly invalid regulation after changes in related regulations made its enforcement more likely and more punitive. Sierra Club has no comparable financial incentives capable of assessment by a court; instead, it presumably has an incentive to challenge any regulatory change that might lead to increased pollution. The majority’s rationale implies that each time EPA changes an emissions regulation, it risks subjecting every related regulation to challenges from third parties. Such a regime, and the instability it generates, is intolerable. Perhaps that is why, until today, we have limited the constructive reopening doctrine to cases involving regulated entities.