As we’ve explained previously, NFIB Small Business Legal Center has been working to defend President Trump’s Executive Order requiring the elimination of two regulations for every new regulation promulgated. And, likewise, we’re defending other common sense deregulatory efforts. Most recently, on August 3, 2017, we joined with a coalition of other concerned industry groups in an amicus brief arguing that EPA Administrator Scott Pruitt acted properly in hitting the pause button on contested regulations that were subject to litigation.
Section 705 of the Administrative Procedures Act allows an agency to postpone the effective date of a new rule when it is challenged in court—where “justice so requires.” Exercising this authority, Scott Pruitt decided that it was only proper to delay implementation of new environmental standards because otherwise businesses would be forced to make substantial capital expenditures to come into compliance before the courts would have a chance to decide whether the contested rules are legal. But, not surprisingly, an environmental advocacy organization sued—seeking to force the agency to begin enforcing the contested regulation in Clean Water Action v. Pruitt.
The environmentalists argue that an agency should not be allowed to delay implementation of promulgated regulations unless the agency determines that a court would issue an injunction to block immediate enforcement—which is, of course, an exceedingly high bar. A reviewing court will only issue an injunction under the most exigent of circumstances where a new rule is likely to be invalidated and where its immediate enforcement would result in irreparable injuries to the regulated community. But as we argue, Congress clearly intended to allow agencies broad latitude to pause implementation of contested regulation that is likely to impose significant burdens on the regulated community—especially where there is a chance that the courts may ultimately invalidate the rules in question. Congress would have specifically said so if it had intended agencies to consider the same factors that courts must consider before issuing an injunction. So, we think it obvious that EPA and other agencies have the prerogative to hit the pause button whenever contested regulation is challenged in court.