The Nickel Report

On October 27, 2020, in a succinct order, the United States Court of Appeals for the District of Columbia Circuit (“the Court” or “D.C. Circuit”) denied motions for stay and for summary vacatur filed by several environmental advocacy groups, including the Environmental Defense Fund and Sierra Club, as well as states and local governments, with leadership from the States of New York and California in litigation challenging EPA’s Oil and Natural Gas Sector:  Emission Standards for New, Reconstructed, and Modified Sources Review, 85 Fed. Reg. 57,018 (Sept. 14, 2020) (“Methane Repeal Rule,” or the “Rule”).  Order at 1, California, et al. v. Andrew Wheeler, et al., No. 20-1357 (D.C. Cir. Oct. 27, 2020).  In addition to an opposition filed by EPA, regulated industry trade groups, including the American Petroleum Institute (“API”), weighed in with the Court on EPA’s behalf to oppose the stay.

The order dissolved a temporary administrative stay that had been granted by the Court during consideration of the motions and denied the motions for stay.  Id. at 1-2.  The order states that Judge Rogers would have granted the motions for stay, and given that this position is specifically noted, it suggests that the denial of the motion for summary vacatur was unanimous.

In denying the motion for summary vacatur, the Court stated that the “merits of the parties’ positions are not so clear as to warrant summary action.”  Id. at 1. (citing Cascade Broadcasting Group, Ltd. v. FCC, 822 F.2d 1172, 1174 (D.C. Cir. 1987)). The relevant passage of Cascade states:

[H]enceforth we will treat motions for summary disposition in appeals and petitions for review of agency action as we treat such motions in appeals from judgments of the district court.  … [M]otions for summary disposition will be granted where the merits of the appeal or petition for review are so clear that “plenary briefing, oral argument, and the traditional collegiality of the decisional process would not affect our decision.”  . . .  Like judgments of the district court, agency action will be subject to summary review by motion only where the moving party has carried the heavy burden of demonstrating that the record and the motions papers comprise a basis adequate to allow the “fullest consideration necessary to a just determination.”

Cascade Broadcasting Group, Ltd., 822 F.2d at 1174 (citations omitted).

In denying the motions to stay, the court stated that the “Petitioners have not satisfied the stringent requirements for a stay pending court review.”  Order at 2 (citing Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures at 33 (2019)).  The Court applied the typical criteria in determining whether to grant a motion for stay:  (1) the likelihood that the moving party will prevail on the merits; (2) the prospect of irreparable injury to the moving party; (3) the possibility of harm to other parties; and (4) the public interest.  Cuomo v. U.S. Nuclear Regulatory Commission, 772 F.2d 972, 974 (D.C. Cir. 1985); see also D.C. Cir. R. 18.

Perhaps as a nod to Judge Rogers, the Court set an expeditious briefing schedule on the merits, with Petitioners’ briefs due December 7, 2020, EPA’s brief due January 6, 2021, and Petitioners’ reply briefs due January 27, 2021.  Final briefs must be filed by February 10, 2021.  Order at 2.

What does the dissolution of the stay and denial of the summary vacatur motion foretell as to the outcome of this rule challenge?  It’s hard to say.  With respect to the summary vacatur, it is fair to conclude that the complexities of EPA’s decisionmaking process and the legal issues presented, along with thousands of pages of administrative record, mean that it would be nearly impossible for the Court to have decided that the Cascade Pacific standard quoted above had been met.  It therefore is unlikely to bear on the merits of the case.

On the other hand, at least Judges Henderson and Walker in denying the stay motion likely concluded that either there was not a likelihood of success on the merits, or that the petitioners had not demonstrated irreparable harm absent a stay.  While it is hard to read the tea leaves on the denial of a stay in terms of what it means for the long term success of EPA’s decision, if the stay had been granted, it would have meant the Court had found petitioners were likely to succeed on the merits of their challenge.  We know that at least Judge Rogers must believe that petitioners are likely to succeed on the permits.  EPA should take some comfort in that Judges Henderson and Walker did not believe the standards for a stay pending judicial review had been satisfied, particularly given the effort it put into creating the administrative record in support of the Methane Repeal Rule.

Finally, the briefing schedule is notable.  It moves the case much faster than a typical case in the D.C. Circuit.  It is a bit ironic that the effect of the petitioners’ motions for stay was that the Trump Administration’s EPA will file its brief in defense of the Methane Repeal Rule, even if it turns out that there will be a Biden Administration come January 20, 2021.  Mark that in the column of “unintended consequences.”