Road construction sign telling motorists to expect delays

On August 17, the day after a federal judge in South Carolina invalidated the Trump administration’s suspension of the rule defining “waters of the United States” (WOTUS) under the Clean Water Act, a panel on the D.C. Circuit invalidated an effort by the administration to extend by 20 months the effective date of the Chemical Disaster Rule, and ordered the rule implemented immediately.

What It Means

This loss in Air Alliance Houston v. EPA, and the earlier WOTUS decision continue a long losing streak in the courts for the administration’s efforts to undue the environmental legacy of President Obama’s and earlier administrations. The issue is not with the substance of the Trump administration’s positions. The courts rarely get anywhere near to that. It is the unwillingness of the administration to go through the procedures required by the Administrative Procedure Act, or in this case by the express wording of the statute itself.

Congress had provided that if there is a legitimate request for reconsideration of a rule under the statute, EPA can delay the effective date of the rule for three months. EPA invoked that provision first, then tried to use other, more general provisions to adopt a Delay Rule extending the effective date for another 20 months. No need to go beyond step one of Chevron to find that EPA was entitled to no deference in its interpretation—the statute is clear on its face and requires no interpretation. The Court of Appeals called the administration’s arguments “a mockery of the statute” under which the rule had been promulgated.

The Administration’s losses for failure to comply with standard administrative or express statutory procedures have become so frequent that one has to ask whether these “suspensions” and “delays” are ill-considered, or a deliberate effort by the administration to show quick action to its base, and shift blame for the ineffectiveness of the effort to the courts.