The case involved an Obama-era rule forcing oil and gas drillers to slash methane emission. In April Scott Pruitt, the new EPA Administrator, announced that the agency would reconsider the rule and stay its implementation for 90 days.
This is obviously something the head of an agency can do. The case for doing it was made all the stronger by the fact, noted by the Wall Street Journal, that the Obama EPA included provisions in the final rule that weren’t in the proposed version and thus weren’t open to public comment.
Yet Judges David Tatel and Robert Wilkins (one of the judges Reid packed the court with) blocked the administrator’s stay, thereby imposing Obama’s rule. They did so even as they acknowledged that the court can only review “final agency actions” and that the EPA’s decision to reconsider the rule is not final. Somehow, they contrived to conclude that the decision to reconsider is really a decision to revoke.
The phrase “you can’t make this stuff up” seems appropriate. Except that these two judges did.
Judge Janice Rogers Brown dissented, on the theory that a temporary stay is, you know, temporary — not final. “Hitting the pause button,” she noted “is the antithesis of ending the matter.”
Feeling the need to demonstrate further that black is not white, she added:
The Court presumes a certain outcome from EPA’s reconsideration, one that a stay along gives us no basis to presume. At stay is, of course, “final” as to whether one must comply with the rule during reconsideration. . . .[This] does not render it “final.” If it did, every interlocutory action that leaves compliance to the discretion of the regulated party would justify judicial review.
The stay is “essentially” nothing but a stay, and it does not qualify as “final agency action” under the two-part inquiry set forth by the Supreme Court.
Harry Reid’s decision to end the judicial filibuster of nominees for U.S. courts of appeals may have paved the way for Republicans to confirm Justice Gorsuch by ending the same practice at the Supreme Court level. But that doesn’t mean Reid’s decision isn’t paying off for the left. In fact, it’s pay…
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