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Agencies obviously have broad discretion to reconsider a regulation at any time. To do so, however, they must comply with the Administrative Procedure Act (APA), including its requirements for notice and comment, 5 U.S.C.S. § 553. An agency issuing a legislative rule is itself bound by the rule until that rule is amended or revoked and may not alter such a rule without notice and comment.
Petitioners, a group of environmental organizations, challenged the Environmental Protection Agency's decision to stay implementation of portions of a final rule concerning methane and other greenhouse gas emissions. According to Environmental Petitioners, EPA's stay violated CAA section 307(d)(7)(B) because "all of the issues Administrator Pruitt identified could have been, and actually were, raised (and extensively deliberated) during the comment period." Environmental Petitioners' Mot. 5. EPA opposed the motion, as do intervenors, a group of oil and gas associations including API, IPAA, and TXOGA.
Did the EPA have authority under the Clean Air Act to stay the rule?
The court held that the administrative record made clear that industry groups had ample opportunity to comment on all four issues on which EPA granted reconsideration, and indeed, that in several instances the agency incorporated those comments directly into the final rule. Because it was thus not "impracticable" for industry groups to have raised such objections during the notice and comment period, 42 U.S.C.S. § 7607(d)(9)(A), (C) did not require reconsideration and did not authorize the stay.