The US Court of Appeals for the D.C. Circuit’s approach to stay requests on Environmental Protection Agency (EPA) regulations is causing perplexity among litigants. Regularly hearing challenges to national EPA regulations, the D.C. Circuit has a track record of seldom granting or explaining stays to halt enforcement of new regulations during judicial review. This leaves the public and affected businesses in a bind, as they must navigate the complex and often costly landscape of compliance while litigation proceeds.
Parties challenging EPA rules typically seek a stay to avoid incurring significant compliance costs that might be wasted if the rules are later struck down. In evaluating stay requests, the court considers factors such as the likelihood of success in the underlying challenge, the prospect of irreparable harm to the challengers, and the public interest implications. However, since Jan. 1, 2016, the D.C. Circuit has granted only four out of 18 stay requests concerning EPA rules, as noted in a report by Bloomberg Law.
Unlike other federal appeals courts and the Supreme Court, which sometimes provide detailed reasoning in their orders, the D.C. Circuit typically offers brief, boilerplate explanations for its decisions. This approach not only challenges litigants seeking to anticipate the court’s decision-making but also raises concerns that potentially meritorious challenges may be stifled. The lack of transparency in explaining the denial of stay requests can force litigants to consider other regional circuits or the Supreme Court for relief.
The inconsistency with other jurisdictions is evident from a recent example where the Supreme Court intervened. On June 27, in Ohio v. EPA, the Supreme Court overruled the D.C. Circuit’s denial of a stay, providing a comprehensive opinion spanning 19 pages. This signifies a contrast with the seven other federal appeals courts outside Washington, D.C., which issued stays and offered more detailed justifications in similar cases.
The cautious stance of the D.C. Circuit regarding stay requests may create an environment where litigants, faced with inevitable compliance and potential loss, hesitate to challenge EPA actions. The ongoing case of West Virginia v. EPA could further test this approach. With each new case, the Supreme Court may yet again be called upon to address the balance between regulatory enforcement and judicial review.