c. Petition for Review Pending Before the D.C. Circuit On March 7, 2025, AFPM and EMA filed a petition for review in the D.C. Circuit challenging the Notice of Decision and alleging that the D.C. Circuit is the proper venue pursuant to 42 U.S.C. § 7607(b)(1). Ex. I. On March 28, 2025, EPA filed a motion to hold the case in abeyance until June 20, 2025. Ex. J. On April 7, 2025, OPEI filed a motion to intervene. Ex. K. On April 9, 2025, the court granted EPA’s motion to hold the case in abeyance pending further order of the court and directed the parties to file motions to govern future proceedings by June 20, 2025. Ex. L. B. LEGAL STANDARDS 1. Administrative Stay under the Administrative Procedure Act Under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., “[w]hen an agency finds that justice so requires, it may postpone the effective date of an action taken by it, pending judicial review.” See 5 U.S.C. § 705. 5 Similarly, “[t]he APA authorizes reviewing courts to stay agency action pending judicial review.” Affinity Healthcare Servs., Inc. v. Sebelius , 720 F. Supp. 2d 12, 15 n.4 (D.C. Cir. 2010) (citing Cuomo v. U.S. Nuclear Regul. Comm’n , 772 F.2d 972, 974 (D.C. Cir. 1985)). Although Section 705 does not specify a test to apply when determining whether justice requires an administrative stay, “Section [705] permits either agencies or courts, if the proper showing be made, to maintain the status quo . . . The authority granted is equitable and should be used by both agencies and courts to prevent irreparable injury or afford parties an adequate judicial remedy.” Sierra Club v. Jackson , 833 F. Supp. 2d 11, 31 (D.C. Cir. 2012). This Agency and courts have applied the four-factor test courts use to determine whether a stay is warranted. See, e.g., id. at 30 (“In considering motions to stay agency action under 5 U.S.C. § 705, courts in this Circuit and beyond have applied the four-part test ‘used to evaluate requests for interim injunctive relief.’”) (internal citations and quotation omitted). Generally, those factors consider whether: (1) the party filing the petition for review is likely to succeed on the merits, (2) the party will incur irreparable harm without a stay, (3) other parties will not be harmed by staying the effective date, and (4) it is in the public interest to stay the effective date. Id. at 31 (citations omitted). EPA has in the past applied this 5 The Clean Air Act, 42 U.S.C. § 7401 et seq., does not preclude application of Section 705 of the APA. See 42 U.S.C. § 7607(d)(1) (“The provisions of sections 553 through 557 and section 706 of Title 5 shall not . . . apply to actions to which this subsection applies.”).
4
Made with FlippingBook Digital Proposal Creator