 United States Court of Appeals
        FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 16, 2018             Decided August 17, 2018

                        No. 17-1155

             AIR ALLIANCE HOUSTON, ET AL.,
                      PETITIONERS

                            v.

  ENVIRONMENTAL PROTECTION AGENCY AND ANDREW
 WHEELER, ACTING ADMINISTRATOR, U.S. ENVIRONMENTAL
                PROTECTION AGENCY,
                   RESPONDENTS

     UNITED STEEL, PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE
 WORKERS INTERNATIONAL UNION, AFL-CIO-CLC, ET AL.,
                    INTERVENORS


               Consolidated with 17-1181


      On Petitions for Review of a Final Rule of the
      United States Environmental Protection Agency
                              2
     Steven C. Wu, Deputy Solicitor General, Office of the
Attorney General for the State of New York, argued the cause
for State Petitioners. With him on the briefs were Eric T.
Schneiderman, Attorney General, Barbara D. Underwood,
Solicitor General, David S. Frankel, Assistant Solicitor
General, Michael J. Myers, Assistant Attorney General, Ellen
F. Rosenblum, Attorney General, Office of the Attorney
General for the State of Oregon, Paul Garrahan, Attorney-in-
Charge, Peter F. Kilmartin, Attorney General, Office of the
Attorney General for the State of Rhode Island, Gregory S.
Schultz, Special Assistant Attorney General, Thomas J.
Donovan, Jr., Attorney General, Office of the Attorney
General for the State of Vermont, Nicholas F. Persampieri,
Assistant Attorney General, Lisa Madigan, Attorney General,
Office of the Attorney General for the State of Illinois,
Matthew J. Dunn, Gerald T. Karr, James P. Gignac, Assistant
Attorneys General, Tom Miller, Attorney General, Office of the
Attorney General for the State of Iowa, Jacob Larson,
Assistant Attorney General, Janet T. Mills, Attorney General,
Office of the Attorney General for the State of Maine, Gerald
D. Reid, Natural Resources Division Chief, Robert W.
Ferguson, Attorney General, Office of the Attorney General
for the State of Washington, William R. Sherman, Assistant
Attorney General, Brian E. Frosh, Attorney General, Office of
the Attorney General for the State of Maryland, Steven M.
Sullivan, Solicitor General, Maura Healey, Attorney General,
Office of the Attorney General for the Commonwealth of
Massachusetts, Christophe Courchesne, Assistant Attorney
General, Hector H. Balderas, Attorney General, Office of the
Attorney General for the State of New Mexico, and William
Grantham, Assistant Attorney General.

   Emma C. Cheuse and Susan J. Eckert argued the cause for
Community Petitioners and Petitioner-Intervenor. With them
                              3
on the briefs were Gordon E. Sommers and Joseph M.
Santarella, Jr.

     Scott L. Nelson and Allison M. Zieve were on the brief for
amici curiae Former Regulatory Officials in support of
petitioners and vacatur.

     Richard L. Revesz, Bethany A. Davis Noll, Denise A. Grab,
and Jason A. Schwartz were on the brief for amicus curiae
Institute for Policy Integrity at New York University School of
Law in support of petitioners.

    Jonathan Brightbill, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for respondents.
With him on the brief were Jeffrey H. Wood, Acting Assistant
Attorney General, Stephanie J. Talbert, Attorney, and Brian
Doster, Assistant General Counsel, U.S. Environmental
Protection Agency.

    Shannon S. Broome argued the cause for intervenor
Chemical Safety Advocacy Group, et al. With her on the brief
were C. Frederick Beckner III, Justin A. Savage, Ryan C.
Morris, Kurt A. Johnson, Charles H. Knauss, Peter Tolsdorf,
Steven P. Lehotsky, Michael B. Schon, Leslie A. Hulse, and
Richard S. Moskowitz.

     Elizabeth B. Murrill, Solicitor General, Office of the
Attorney General for the State of Louisiana, argued the cause
for intervenor State of Louisiana. With her on the brief were
Jeff Landry, Attorney General, Michelle M. White, Assistant
Solicitor General, Leslie Rutledge, Attorney General, Office of
the Attorney General for the State of Arkansas, Lee Rudofsky,
Solicitor General, Nicholas J. Bronni, Deputy Solicitor
General, Derek Schmidt, Attorney General, Office of the
Attorney General for the State of Kansas, Jeffrey A. Chanay,
                              4
Chief Deputy Attorney General, Bryan C. Clark, Assistant
Solicitor General, Mark Brnovich, Attorney General, Office of
the Attorney General for the State of Arizona, Dominic E.
Draye, Solicitor General, Pamela Jo Bondi, Attorney General,
Office of the Attorney General for the State of Florida, Edward
M. Wenger, Chief Deputy Solicitor General, Mike Hunter,
Attorney General, Office of the Attorney General for the State
of Oklahoma, Mithun Maninghani, Solicitor General, Ken
Paxton, Attorney General, Office of the Attorney General of
the State of Texas, Scott A. Keller, Solicitor General, Patrick
Morrisey, Attorney General, Office of the Attorney General for
the State of West Virginia, Erica N. Peterson, Deputy Solicitor
General, S. Chad Meredith, Deputy General Counsel, Office of
the Attorney General for the Commonwealth of Kentucky,
Alan Wilson, Attorney General, Office of the Attorney General
for the State of South Carolina, James Emory Smith, Jr.,
Deputy Solicitor General, Sean Reyes, Attorney General,
Office of the Attorney General for the State of Utah, Tyler R.
Green, Solicitor General, Brad Schimel, Attorney General,
Office of the Attorney General for the State of Wisconsin, and
Misha Tseytlin, Solicitor General. Paul A. Martin, Chief
Deputy Attorney General, Office of the Attorney General for
the State of West Virginia, Harry J. Vorhoff, Assistant
Attorney General, Office of the Attorney General for the State
of Louisiana, and Jonathan L. Williams entered appearances.

    Before: ROGERS, KAVANAUGH* and WILKINS, Circuit
Judges.

    Opinion for the court filed PER CURIAM.



    *
      Judge Kavanaugh was a member of the panel at the time
the case was argued but did not participate in this opinion.
                               5
     PER CURIAM: This appeal presents the question whether
the Environmental Protection Agency (“EPA”) had authority
under Sections 307(d)(7)(B) and 112(r)(7) of the Clean Air Act
(“CAA”), 42 U.S.C. §§ 7607(d)(7)(B), 7412(r)(7), to delay the
effective date of the Chemical Disaster Rule of January 13,
2017, for twenty months for the purpose of reconsideration,
and, if so, whether it properly exercised that authority. We hold
that where EPA has exercised its Section 7607(d)(7)(B)
authority to delay the effectiveness of a final rule, it cannot
avoid that statute’s express limitations by invoking general
rulemaking authority under a different statutory provision.
EPA’s action was arbitrary and capricious in any event.
Accordingly, we vacate the Delay Rule of June 14, 2017.

                               I.

                               A.

     In 1990, Congress amended the CAA, and addressed
among other things multiple high-profile chemical accidents
that harmed workers, local communities, and the environment.
See 136 CONG. REC. S16,899, S16,926–27 (1990) (Conf. Rep.).
Section 112(r) of the 1990 Amendments, “Prevention of
Accidental Releases,” provides that “[i]t shall be the objective
of the regulations and programs authorized under this
subsection to prevent the accidental release and to minimize the
consequences of any such release of any [listed substance] or
any other extremely hazardous substance.” 42 U.S.C.
§ 7412(r)(1).    “Accidental release” is defined as “an
unanticipated emission of a regulated substance or other
extremely hazardous substance into the ambient air from a
stationary source.” Id. § 7412(r)(2)(A). Congress also
established the Chemical Safety Board (“CSB”) to investigate
major accidental releases and issue reports to EPA
“recommending measures to reduce the likelihood or the
                                6
consequences of accidental releases and proposing corrective
steps to make chemical [industrial processes] as safe and free
from risk of injury as is possible.” Id. § 7412(r)(6)(C)(ii).
“Whenever the [CSB] submits a recommendation with respect
to accidental releases to [EPA], the Administrator shall respond
to such recommendation . . . not later than 180 days after
receipt,” indicating whether EPA will “initiate a rulemaking or
issue such orders as are necessary to implement the
recommendation in full or in part, pursuant to any timetable
contained in the recommendation.” Id. § 7412(r)(6)(I). If the
Administrator decides not to implement the CSB’s
recommendation in whole or part, “including any variation
from the schedule contained in the recommendation,” the
Administrator must provide a statement “setting forth the
reasons for such determination.” Id.

     Section 7412(r)(7) authorizes EPA to “promulgate release
prevention, detection, and correction requirements which may
include monitoring, record-keeping, reporting, training, vapor
recovery, secondary containment, and other design, equipment,
work practice, and operational requirements.”                   Id.
§ 7412(r)(7)(A). “Regulations promulgated pursuant to this
subparagraph shall have an effective date, as determined by the
Administrator, assuring compliance as expeditiously as
practicable.” Id. That section also requires EPA to
“promulgate reasonable regulations and appropriate guidance
to provide, to the greatest extent practicable, for the prevention
and detection of accidental releases of regulated substances and
for response to such releases by the owners or operators of the
sources of such releases,” and requires that such regulations
“be applicable to a stationary source 3 years after the date of
promulgation.” Id. § 7412(r)(7)(B)(i). These regulations must
direct stationary sources to implement a Risk Management
Plan (“RMP”) to “detect and prevent or minimize accidental
releases . . . and to provide a prompt emergency response to
                               7
any such releases in order to protect human health and the
environment.” Id. § 7412(r)(7)(B)(ii). The RMPs must be
registered with the EPA and available to the public. Id.
§ 7412(r)(7)(B)(iii).

     Under Section 307(d)(7)(B) of the CAA, 42 U.S.C.
§ 7607(d)(7)(B), EPA must convene a proceeding to reconsider
a rule if a person “raising an objection can demonstrate to the
Administrator that [1] it was impracticable to raise such
objection within [the notice and comment period] . . . and [2] if
such objection is of central relevance to the outcome of the
rule.” Clean Air Council v. Pruitt, 862 F.3d 1, 4–5 (D.C. Cir.
2017) (alterations in original). “Such reconsideration shall not
postpone the effectiveness of the rule.”            42 U.S.C.
§ 7607(d)(7)(B).      “The statute also provides that the
‘effectiveness of the rule may be stayed during such
reconsideration, however, by the Administrator or the court for
a period not to exceed three months.’” Clean Air Council, 862
F.3d at 5 (quoting § 7607(d)(7)(B)).

                               B.

     EPA first promulgated accidental release prevention
regulations in 1996.         Accidental Release Prevention
Requirements: Risk Management Programs Under Clean Air
Act Section [7412(r)(7)], 61 Fed. Reg. 31,668 (June 20, 1996).
In July 2012, a coalition of environmental groups, community
organizations, unions, and health workers petitioned EPA for a
rulemaking under Section 7412(r)(7) to “require the use of
inherently safer technologies, where feasible, by facilities that
use or store hazardous chemicals.” Greenpeace, United
Steelworkers, Sierra Club et al., Petition to Prevent Chemical
Disasters to EPA Administrator Lisa Jackson (July 25, 2012).
The petition cited dangers from releases caused both by
accidents and by terrorist attacks on U.S. chemical facilities.
                               8
Soon after, several chemical accidents occurred that received
significant public attention and became subjects of CSB
investigations. These accidents included the April 2013
explosion of a fertilizer plant in West, Texas and the June 2013
explosion of a chemical plant in Geismar, Louisiana. See
Oversight of Federal Risk Management and Emergency
Planning Programs to Prevent and Address Chemical Threats,
Including the Events Leading Up to the Explosions in West, TX
and Geismar, LA, Hearing Before the S. Comm. on Envt. &
Pub. Works, 113th Cong. (2013) (statement of Rafael Moure-
Eraso, Chairperson of the U.S. Chemical Safety Board). The
West, Texas disaster involved a fire and explosion that crushed
buildings and sent projectiles into neighboring communities,
killing twelve first responders and two members of the public
and causing $230 million in damage. The Geismar, Louisiana
disaster also involved a fire and explosion, which killed two
workers and injured many more.

     On August 1, 2013, President Obama issued an executive
order establishing a Chemical Facility Safety and Security
Working Group co-chaired by the EPA Administrator and the
Secretaries of Labor and Homeland Security. Exec. Order No.
13,650 § 2, Improving Chemical Facility Safety and Security,
78 Fed. Reg. 48,029 (Aug. 1, 2013). The Executive Order
directed that within 90 days,

        [T]he Administrator of EPA and the Secretary of
        Labor shall review the chemical hazards covered by
        the Risk Management Program (RMP) . . . and
        determine if [it] can and should be expanded to address
        additional regulated substances and types of hazards.
        In addition, the EPA . . . shall develop a plan, including
        a timeline and resource requirements, to expand,
        implement, and enforce [the RMP] in a manner that
                               9
         addresses the additional regulated substances and
         types of hazards.

Id. § 6(c).

     One year later, EPA published a request for information in
the Federal Register seeking comment on “potential revisions
to its [accidental release] regulations and related programs.”
Accidental Release Prevention Requirements: Risk
Management Programs Under the Clean Air Act, Section
[7412(r)(7)], 79 Fed. Reg. 44,604, 44,604 (July 31, 2014). The
request solicited comments on dozens of potential regulatory
actions under Section 7412(r), citing several chemical
accidents that had occurred since the most recent promulgation
of accidental release prevention requirements under that
section. EPA received over 100,000 responses, including a 50-
page letter from the CSB recommending dozens of regulatory
regulations based on research and recent accident
investigations.

     In March 2016, EPA issued a Notice of Proposed
Rulemaking proposing amendments to the accidental release
prevention regulations.       Accidental Release Prevention
Requirements: Risk Management Programs under the Clean
Air Act (“Disaster Rule NPRM”), 81 Fed. Reg. 13,638 (Mar.
14, 2016). The Disaster Rule NPRM explained that although
EPA “believe[d] the [existing regulations] ha[ve] been
effective in preventing and mitigating chemical
accidents . . . [,] major incidents, such as the West, Texas
explosion, highlight the importance of reviewing and
evaluating current practices and regulatory requirements, and
applying lessons learned . . . to advance process safety where
needed.” Id. at 13,646. EPA also explained that “[i]n addition
to the tragedy at the West Fertilizer facility, a number of other
incidents have demonstrated a significant risk to the safety of
                                10
American workers and communities,” and proceeded to discuss
several recent explosions and fires that resulted in death, injury,
and property damage to workers, first responders, and local
communities. Id. at 13,644 (emphasis added). EPA estimated
the annualized cost of on-site damages from chemical releases
was $274.7 million, and estimated the cost of carrying out the
proposed rule would be $131.2 million annually for the 12,500
facilities potentially subject to its requirements. Although EPA
was “unable to quantify what specific reductions [in damages]
may occur as a result of these proposed revisions [to the
accidental release regulations],” it “anticipate[d] that
promulgation and implementation of this rule would result in a
reduction of the frequency and magnitude of damages from
releases,” and “expect[ed] that some portion of future damages
would be prevented through implementation of a final rule.”
Id. at 13,642. Further, EPA found, “the monetized impacts
omit many important categories of accident impacts including
lost productivity, the costs of emergency response, transaction
costs, property value impacts in the surrounding
community . . . , and environmental impacts.” Id. at 13,643.
The Disaster Rule NPRM specifically solicited comments on
proposed compliance and effective dates for the various
requirements.

     EPA promulgated a final rule on January 13, 2017.
Accidental Release Prevention Requirements: Risk
Management Programs Under the Clean Air Act (“Chemical
Disaster Rule”), 82 Fed. Reg. 4594 (Jan. 13, 2017). The final
rule revised dozens of Section 7412(r)(7) requirements in three
major areas: (1) accident prevention, including expanded post-
accident investigations, more rigorous safety audits, safety
training, and safer technology requirements; (2) emergency
response, including more frequent coordination with local first
responders and emergency response committees, and more
intensive incident-response exercises; and (3) public
                              11
information disclosure, including public disclosure of safety
information and public-meeting requirements. EPA responded
to comments it received regarding the appropriate effective and
compliance dates for various provisions of the rule and
explained in detail why it chose to adopt or reject these
recommendations. The final rule set an overall effective date
of March 14, 2017, sixty days after promulgation. Id. at 4594.
Some provisions related to clarifying regulatory definitions
went into effect on that date. Others, including most local
emergency-response coordination requirements, became
effective in one year, on March 14, 2018. Id. at 4678. The
requirements for emergency response exercises, public
information-sharing and post-accident public meetings, third-
party audits, more rigorous post-incident analyses, and safer
technology requirements became effective three years later, on
March 15, 2021. Id. The compliance deadline for covered
facilities to submit an updated RMP was March 14, 2022. Id.

                              C.

      Following a change in presidential administration, EPA
delayed the effective date of the final Chemical Disaster Rule
three times. On January 26, 2017, less than two weeks after
promulgation of the rule, EPA published a final rule delaying
its effective date by one week, to March 21, 2017, along with
the effective dates of twenty-nine other final EPA rules. Delay
of Effective Date for 30 Final Regulations Published by the
Environmental Protection Agency Between October 28, 2016
and January 17, 2017, 82 Fed. Reg. 8499-02 (Jan. 26, 2017).
This initial delay implemented a January 20, 2017
memorandum from then-White House Chief of Staff Reince
Priebus directing agency heads to “temporarily postpone [the]
effective dates for 60 days” of regulations that had been
promulgated but not yet taken effect. Memorandum from
Reince Priebus to Heads of Executive Departments and
                               12
Agencies: Regulatory Freeze Pending Review (Jan. 20, 2017)
(“Priebus Memorandum”). The Priebus Memorandum also
directed agency heads to “consider proposing for notice and
comment a rule to delay the effective date for regulations
beyond that 60-day period.” Id.

     On February 28, 2017, a coalition of industry groups
submitted a petition for reconsideration of the Chemical
Disaster Rule. A group of states also petitioned for
reconsideration.      About two weeks later, the EPA
Administrator announced his determination that the criteria for
reconsideration under Section 7607(d)(7)(B) had been met and,
pursuant to that section, administratively stayed the Chemical
Disaster Rule’s effective dates for ninety days, until June 19,
2017. See Accidental Release Prevention Requirements: Risk
Management Programs Under the Clean Air Act; Further Delay
of Effective Date (“90-Day Stay”), 82 Fed. Reg. 13,968-02
(Mar. 16, 2017). During that stay, on April 3, 2017, EPA
issued a notice of proposed rulemaking proposing to delay the
effective date of the Chemical Disaster Rule by an additional
20 months, until February 19, 2019. Accidental Release
Prevention Requirements: Risk Management Programs Under
the Clean Air Act; Further Delay of Effective Date (“Delay
Rule NPRM”), 82 Fed. Reg. 16,146-01, 16,148 (Apr. 3, 2017).

     EPA promulgated the final rule on June 14, 2017, delaying
the effective date of the Chemical Disaster Rule until February
19, 2019. Accidental Release Prevention Requirements: Risk
Management Programs Under the Clean Air Act; Further Delay
of Effective Date (“Delay Rule”), 82 Fed. Reg. 27,133-01
(June 14, 2017). The Delay Rule recounted that EPA has
received three petitions for reconsideration of the Chemical
Disaster Rule “as provided for in [Section 7607(d)(7)(B)],” and
that EPA issued a three-month stay under that section because
“the criteria for reconsideration ha[d] been met for at least one
                               13
of the three objections.” Id. at 27,134–35. However, EPA
explained, Section 7607(d)(7)(B) limits a stay “to three
months,” and “EPA believed that three months was insufficient
to complete the necessary steps in the reconsideration process
for the [Chemical Disaster Rule].” Id. at 27,135.

      Thus, according to EPA, the Delay Rule has the purpose
of “allow[ing] EPA to conduct a reconsideration proceeding
and to consider other issues that may benefit from additional
comment.” Id. at 27,133. The Delay Rule further explained
that EPA might take additional action during the 20-month
delay period, “which could include proposing and finalizing a
rule to revise or rescind [the Chemical Disaster Rule].” Id.
EPA justified its choice of a 20-month delay because of the
complex issues involved and “[b]ased on EPA rulemaking
experience,” without further elaboration. Id. at 27,140. It
justified its delay of the first-responder coordination provisions
— which otherwise would have been effective on March 14,
2018 — because “[i]n agreeing to convene a proceeding for
reconsideration of the final rule, EPA agreed to provide the
public with an opportunity to comment on other issues . . . . By
finalizing these provisions immediately, EPA would not be
allowing the public an additional opportunity to comment on
them.” Id. at 27,142. The Delay Rule also explained that “[a]
delay of effectiveness will allow EPA time for a
comprehensive review of objections to the [Chemical Disaster
Rule] without imposing the rule’s substantial compliance and
implementation resource burden when the outcome of the
review is pending.” Id. at 27,136. EPA stated that
“[c]ompliance with all of the rule provisions is not required as
long as the rule does not become effective. The EPA did not
propose and is not taking any action on any compliance dates
at this time.” Id. As authority for promulgating the Delay Rule,
EPA cited Sections 7607(d) and 7412(r)(7). Id. at 27,135.
                               14
     Two groups petitioned for review of the Delay Rule: over
a dozen community and environmental groups, including Air
Alliance Houston (“Community Petitioners”), and a number of
states (“State Petitioners”). The United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied Industrial
and Service Workers International Union, AFL-CIO/CLC
(“United Steelworkers”), intervened on behalf of Community
Petitioners.   A group of industry interests (“Industry
Intervenors”), many of whom had petitioned EPA for
reconsideration of the Chemical Disaster Rule, intervened on
EPA’s behalf.

                               II.

     As a threshold matter, EPA and Industry Intervenors
challenge the Article III standing of Community Petitioners
and State Petitioners to bring these petitions. Standing is a
structural, constitutional restraint on the subject matter
jurisdiction of the federal judiciary. Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 412 (2013). Petitioners in an agency
appeal must, in their opening brief, either identify “record
evidence” or “submit additional evidence to the court of
appeals” to support their standing. Pub. Citizen, Inc. v. NHTSA
(“Public Citizen I”), 489 F.3d 1279, 1289 (D.C. Cir. 2007).
“When evaluating such evidence concerning standing, we
‘assume that on the merits the plaintiffs would be successful in
their claims.’” Id. (quoting City of Waukesha v. EPA, 320 F.3d
228, 235 (D.C. Cir. 2003)).

    To establish standing, a petitioner must show (i) it has
“suffered a concrete and particularized injury in fact, (ii) that
was caused by or is fairly traceable to the actions of the
defendant, and (iii) is capable of resolution and likely to be
redressed by judicial decision.” Sierra Club v. EPA, 755 F.3d
968, 973 (D.C. Cir. 2014) (citing Lujan v. Defs. of Wildlife, 504
                               15
U.S. 555, 560–61 (1992)). “An allegation of future injury may
suffice” to show injury in fact “if the threatened injury is
‘certainly impending’ or there is a ‘substantial risk that the
harm will occur.’” Susan B. Anthony List v. Driehaus, 134 S.
Ct. 2334, 2341 (2014) (quoting Clapper, 568 U.S. at 414 n.5).
The party asserting standing must also demonstrate “a causal
connection between the injury and the conduct complained of.”
Lujan, 504 U.S. at 560. When challenging failure to regulate,
a petitioner need demonstrate only a “substantial probability
that local conditions will be adversely affected, and thus will
harm members of the petitioner organization.” Am. Petroleum
Inst. v. EPA, 216 F.3d 50, 63 (D.C. Cir. 2000) (quotation marks
omitted). At the same time, “when the [petitioner] is not
himself the object of government action or inaction he
challenges, standing is not precluded, but it is ordinarily
‘substantially more difficult’ to establish.” Lujan, 504 U.S. at
562 (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)).

     “An organization has standing to sue on behalf of its
members when . . . ‘its members would otherwise have
standing to sue in their own right.’” Public Citizen I, 489 F.3d
at 1289 (quoting Hunt v. Wash. State Apple Adver. Comm’n,
432 U.S. 333, 343 (1977)). When organizations assert such
representational standing, “they must demonstrate that at least
one of their members would otherwise have standing to sue in
his or her own right; that the interests they seek to protect are
germane to their organizations’ purposes; and that neither the
claim asserted nor the relief requested requires the participation
of individual members.” Sierra Club, 755 F.3d at 973. “When
more than one association brings suit, ‘we need only find one
party with standing’ to satisfy the [standing] requirement.”
Ctr. for Biological Diversity v. EPA, 861 F.3d 174, 182 (D.C.
                              16
Cir. 2017) (quoting Ams. for Safe Access v. DEA, 706 F.3d 438,
443 (D.C. Cir. 2013)).

                              A.

     EPA and Industry Intervenors do not contest that a
challenge to the Delay Rule is germane to Community
Petitioners’ organizational purposes. Nor do they argue that
the participation of individual members is necessary. The
question, then, is whether Community Petitioners have
adequately shown that at least one of their members meets the
requirements of injury, traceability, and redressability. See
Sierra Club, 755 F.3d at 973. They have.

     Even if the only tangible impact of the Delay Rule were
delay of the Chemical Disaster Rule’s first-responder
provisions, the potential harm to members of United
Steelworkers is alone sufficient to provide standing to
Community Petitioners. Ctr. for Biological Diversity, 861 F.3d
at 182 (only one organization need have standing).
Approximately 25,000 of United Steelworkers’ members work
in 350 covered chemical plants in the United States, and United
Steelworkers-represented “refineries account for almost two-
thirds of United States production. No single company, and no
other union, either operates, or represents the workers in more
plants that are the subject of the [RMP] regulations than”
United Steel. Nibarger Decl. ¶ 2 (DEC. 96). Several
declarations from United Steelworkers members describe
hazards that they face from accidental releases as plant workers
and that their families face as residents of communities close
to the covered facilities. See, e.g., Kelley Decl. ¶¶ 3–16 (DEC.
21–24); Lilienfeld Decl. ¶¶ 1–11 (DEC. 56–58); Nibarger
                             17
Decl. ¶¶ 1–20 (DEC. 96–99). For example, Ben Lilienfeld, a
United Steelworkers member in Baytown, Texas, avers that:

        [A] butadiene release in 2015 at Shell Deer Park
        Refinery & Chemical in Deer Park, Texas, put our
        members at risk . . . . At the LyondellBasell facility
        in Houston, Texas, multiple fires have occurred over
        the last several years causing releases. The same risks
        that caused the explosions at the Phillips Pasadena
        complex in 1989 [— a series of explosions at a Texas
        chemical plant resulting from the accidental release of
        flammable process gases that killed 23 employees,
        injured 100 more, and caused $1.4 billion in damage
        —] still exist today and our members and
        communities were, are and will remain on the front
        line.

Lilienfeld Decl. ¶ 10 (DEC. 58); Comment, Coalition to
Prevent Chemical Disasters (Oct. 29, 2014), J.A. 497. Such
risks are particularized to chemical plant workers such as the
United Steelworkers’ members, and EPA found that the
Chemical Disaster Rule would reduce the kinds of accidents
that Lilienfeld and the other United Steelworkers declarants
face in their workplace and communities, and would mitigate
such harms by improving coordination between facilities and
local first responders. See Chemical Disaster Rule, 82 Fed.
Reg. at 4597; EPA Activities Under EO 13650: Risk
Management Program (RMP) Final Rule Questions & Answers
(June 2017) (“EPA’s changes to the RMP rule will help protect
local first responders, community members and employees
from death or injury due to chemical facility accidents.”).
Living and working with a higher risk of such harms than
                               18
would exist if the Chemical Disaster Rule became effective on
time is therefore directly traceable to the Delay Rule.

                               B.

     State Petitioners also have Article III standing. “[T]here
is no difficulty in recognizing [a state’s] standing to protect
proprietary interests or sovereign interests.” 13B WRIGHT &
MILLER, FED. PRAC. & PROC. § 3531.11.1, Government
Standing – States (3d ed.). The Supreme Court has recognized
“[t]wo kinds of nonsovereign interests” for state standing
purposes: proprietary interests such as “own[ing] land or
participat[ing] in a business venture,” and private interests of
another when the state is the “real party in interest.” Alfred L.
Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592,
601–02 (1982).

      The Delay Rule affects State Petitioners’ proprietary
interests due to the expenditures states have previously made
and may incur again when responding to accidental releases
during the delay period. State Pet. Br. 22–26. Hundreds of
covered industrial facilities are located in State Petitioners’
territory.    Petitioner Washington State spent $370,000
responding to and investigating a refinery explosion that EPA
specifically cited as an example of why the existing regulations
needed to be strengthened. State Pet. Br. 26; Chemical Disaster
Rule, 82 Fed. Reg. at 4599; see also Disaster Rule NPRM, 79
Fed. Reg. at 44,621 (explaining that the CSB found that this
explosion in Washington State “could have been avoided if
safer technologies had been employed”).                Monetary
expenditures to mitigate and recover from harms that could
have been prevented absent the Delay Rule are precisely the
kind of “pocketbook” injury that is incurred by the state itself.
See Snapp, 458 U.S. at 602. Because State Petitioners have
demonstrated their independent proprietary interests in
                              19
avoiding chemical releases in their territory sufficient to
support standing, the court need not reach the alternative
argument that Congress has abrogated the prudential bar on
state parens patriae standing under the CAA. See Md.
People’s Counsel v. FERC, 760 F.2d 318, 320 (D.C. Cir.
1985).

                              III.


     EPA has thrice delayed the effective date of the Chemical
Disaster Rule, 82 Fed. Reg. 4594 (Jan. 13, 2017) (eff. Mar. 14,
2017). First, in response to a White House memorandum of
January 20, 2017, EPA delayed the effective date by one week.
Priebus Memorandum, 82 Fed. Reg. 8499-02 (Jan. 26, 2017).
Second, on March 16, 2017, EPA granted industry petitions for
reconsideration and stayed the effective date and compliance
dates of the Chemical Disaster Rule for three months pursuant
to Section 7607(d)(7)(B). 90-Day Stay, 82 Fed. Reg. 13,968-
02 (Mar. 16, 2017). Third, during this stay, EPA promulgated
the Delay Rule, 82 Fed. Reg. 27,133 (June 14, 2017). The
preamble to the Delay Rule states that it allows EPA, beyond
the three-month period authorized in Section 7607(d)(7)(B),
“an additional 20 months . . . to conduct reconsideration
proceedings and to consider other issues that may benefit from
additional comment.” Id. (emphasis added).

     “[I]t is ‘axiomatic’ that ‘administrative agencies may act
only pursuant to authority delegated to them by Congress.’”
Clean Air Council, 862 F.3d at 9 (quoting Verizon v. FCC, 740
F.3d 623, 632 (D.C. Cir. 2014)). This court reviews “an
agency’s construction of the statute which it administers” under
the framework of Chevron, U.S.A., Inc. v. NRDC, 467 U.S.
837, 842 (1984). If “Congress has spoken directly to the
precise question at issue” and “the intent of Congress is clear,
                                20
that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of
Congress.” Id. at 842–43. But “if the statute is silent or
ambiguous with respect to the specific issue,” the court will
uphold the agency’s interpretation if it is reasonable. Id. at 843.

     Section 7607(d)(7)(B) provides that reconsideration of a
final rule pursuant to that section “shall not postpone the
effectiveness of the rule” and that the “effectiveness of the rule
may be stayed during such reconsideration . . . for a period not
to exceed three months.” It is beyond dispute that EPA relied
upon Section 7607(d)(7)(B) when delaying the Chemical
Disaster Rule in response to reconsideration petitions. Delay
Rule, 82 Fed. Reg. at 27,134. Throughout the Delay Rule, EPA
repeatedly justified delay of effective dates on the basis that it
needs more time to reconsider the Chemical Disaster Rule than
was provided under Section 7607(d)(7)(B). See id. at 27,136
(“A delay of effectiveness will allow EPA time for a
comprehensive review of objections to the [Chemical Disaster
Rule] without imposing the rule’s substantial compliance and
implementation resource burden when the outcome of the
review is pending.”); id. at 27,138 (“EPA concurs with
commenters to the extent that they argue for finalizing the
proposed delay in effective date . . . in order to conduct a
reconsideration proceeding.” (emphasis added)); id. at 27,140
(“[T]hese issues may be difficult and time consuming to
evaluate.”). The only justification offered in EPA’s short
summary of the Delay Rule is that it “allows the Agency time
to consider petitions for reconsideration of the [Chemical
Disaster Rule] and take further regulatory action, as
appropriate.” Id. at 27,133. But regardless whether EPA
“believe[s] that three months [is] insufficient to complete the
necessary steps in the reconsideration process,” id. at 27,135,
that is not EPA’s call. Congress saw fit to place a three-month
statutory limit on “such reconsideration,” 42 U.S.C.
                              21
§ 7607(d)(7)(B), and this court “must give effect to the
unambiguously expressed intent of Congress,” Chevron, 467
U.S. at 843.       Because the Delay Rule arose from
reconsideration petitions under Section 7607(d)(7)(B) and
EPA’s reliance on its authority to delay a rule for
reconsideration under that provision, that statute’s limitations
apply.

     Tellingly, EPA’s briefing makes no mention of its reliance
on Section 7607(d)(7)(B) in promulgating and justifying the
Delay Rule. Rather, EPA argues that the Delay Rule is
permissible under 42 U.S.C. § 7412(r)(7), which provides that
a rule’s effective date “as determined by the Administrator”
must “assure[] compliance as expeditiously as practicable.”
See Respondent Br. 27–35. Even if Section 7412(r)(7) grants
EPA authority to delay the effectiveness of a final rule in the
absence of reconsideration under Section 7607(d)(7)(B), it is
well established that an agency may not circumvent specific
statutory limits on its actions by relying on separate, general
rulemaking authority. As we explained in NRDC v. Reilly, a
“general grant of rulemaking power . . . [cannot] trump the
specific provisions of the act.” 976 F.2d 36, 40 (D.C. Cir.
1992); see also Long Island Care at Home, Ltd. v. Coke, 551
U.S. 158, 169–70 (2007) (explaining that when two regulations
conflict on the same subject matter, “the specific governs the
general,” and the more specific regulation applies). Similarly,
in Halverson v. Slater, this court held that the Secretary of
Transportation’s general statutory authority to delegate “duties
and powers of the Secretary to an officer or an employee of the
Department” was trumped by a more specific provision that the
“Secretary may delegate the duties and powers conferred by
this subtitle . . . to any officer, employee, or member of the
Coast Guard.” 129 F.3d 180, 183–84 (D.C. Cir. 1997). This
court rejected the Secretary’s argument that he could use his
general delegation authority absent an express restriction on
                               22
that authority, concluding that under Chevron step one, “the
language of [the more specific provision] compels the
conclusion that the Congress did not intend to authorize
delegation of [these] functions to a non-Coast Guard official.”
Id. at 185; see also Chemical Waste Mgmt., Inc. v. EPA, 976
F.3d 2, 22 (D.C. Cir. 1992) (EPA may not “accommodate” two
statutes by allowing one to “override” the more specific
requirements of the other).

     So too here. EPA cannot escape Congress’s clear intent to
specifically limit the agency’s authority under Section
7607(d)(7)(B) by grasping at its separate, more general
authority under Section 7412(r)(7). That would almost always
allow EPA to avoid the restrictions of Section 7607(d)(7)(B)
by simply insisting it was invoking Section 7412(r)(7), even
when it is indisputably responding to a Section 7607(d)(7)(B)
petition and reconsidering a rule under that specific provision.
Such an unreasonable interpretation “would deprive [the more
specific authority] of virtually all effect.” Halverson, 129 F.3d
at 189 (quoting Am. Fed’n of Gov’t Emps. v. FLRA, 798 F.2d
1525, 1528 (D.C. Cir. 1986)).

     The court’s conclusion that the plain text of Section
7607(d)(7)(B) limits EPA’s authority to delay final rules for the
purposes of reconsideration under that provision is bolstered by
the statute’s history. Congress enacted the CAA in 1970 to
encourage and promote “pollution prevention.” 42 U.S.C.
§ 7401(c). It found that that air pollution posed “mounting
dangers to the public health and welfare, including injury to
agricultural crops and livestock, damage to and the
deterioration of property, and hazards to air and ground
transportation.” Id. § 7401(a)(2). It envisioned a cooperative
effort by federal, state, and local governments to, among other
things, “protect and enhance the quality of the Nation’s air
resources so as to promote the public health and welfare.” Id.
                               23
§ 7401(b), (c). EPA was directed to carry out these purposes
by, for instance, identifying and listing hazardous air pollutants
(“HAPs”), setting standards for mobile sources, and issuing
rules for new stationary sources. In fact, statutory deadlines
were not met for meeting the National Ambient Air Quality
Standards (“NAAQS”), and Congress found that “many of the
Nation’s most important air pollution problems have failed to
improve or have grown more serious.” H.R. REP. No. 101-490,
at 144 (May 17, 1990). Also, “a number of serious new air
pollution problems have emerged.” Id. In 20 years, EPA had
established standards for only seven HAPs, “a small fraction of
the many substances associated . . . with cancer, birth defects,
neurological damage, or other serious health impacts.” Id. at
151.

     In 1990, Congress — no longer willing to wait for EPA to
act — amended the CAA. Section 7412 of Title III, the HAPs
provision, was amended to establish “a new program for the
control of [HAPs].” Id. at 315. Congress identified and listed
189 HAPs and assigned specific timetables for the
promulgation of regulations and the attainment of NAAQS.
Significantly for present purposes, Congress was aware that
“[a]ccidental releases of air toxics occur with surprising
frequency.” Id. at 154. The 1990 Amendments created “a new
program under which EPA is to establish reasonable and
appropriate regulations to prevent and detect accidental
releases to the maximum extent practicable.” Id. at 157; see S.
REP. No. 101-228, at 237 (Dec. 20, 1989). The section-by-
section analysis stated:

         Accident prevention, detection, and response.—
         [Section 7412(r)(7)] directs the Administrator within
         three years of enactment to promulgate, in
         consultation with the Secretaries of Transportation
         and Labor . . . regulations to provide, to the greatest
                               24
         extent practicable, for the prevention and detection of
         accidental releases into the ambient air.          The
         regulations must also provide for effective responses
         to such accidental releases by regulated sources. The
         regulations are to take effect three years after
         promulgation.

H.R. REP. No. 101-490, at 334.

     The Chemical Disaster Rule is the most recent outgrowth
of Congress’s effort in the 1990 Amendments to ensure
adequate protections against highly dangerous accidental
releases of chemicals. By Executive Order No. 13,650,
Improving Chemical Facility Safety and Security, 78 Fed. Reg.
48,029 (Aug. 1, 2013), issued in the wake of serious disasters
at chemical plants, EPA and several other agencies were
directed to “improve chemical facility safety and security in
coordination with owners and operators,” id. § 1, and EPA was
instructed to strengthen its accident prevention regulations, id.
§§ 2–7. EPA issued a notice of proposed rulemaking in March
2016, held public hearings, and received written comments.
The final rule revised and strengthened accident prevention,
emergency response, and public information disclosure
requirements. Chemical Disaster Rule, 82 Fed. Reg. at 4595;
see supra Part [I.B]. It was to take effect in 30 days, on March
14, 2017, with different compliance dates for some provisions
in order to accommodate industry needs. Chemical Disaster
Rule, 82 Fed. Reg. at 4594, 4678.

    EPA brought this regulatory action to a halt. Section
7607(d)(7)(B) provides:

         If the person raising an objection can demonstrate to
         the Administrator that it was impracticable to raise
         such objection within such time or if the grounds for
                              25
         such objection arose after the period for public
         comment . . . and if such objection is of central
         relevance to the outcome of the rule, the
         Administrator shall convene a proceeding for
         reconsideration of the rule . . . . Such reconsideration
         shall not postpone the effectiveness of the rule. The
         effectiveness of the rule may be stayed during such
         reconsideration, however, by the Administrator or the
         court for a period not to exceed three months.

42 U.S.C. § 7607(d)(7)(B) (emphasis added). In the Delay
Rule, EPA interpreted that provision as “generally allow[ing]
the EPA to set effective dates as appropriate unless other
provisions of the CAA control.” Delay Rule, 82 Fed. Reg. at
27,135. As an initial matter, EPA previously interpreted that
provision as establishing the CAA’s exclusive mechanism for
staying the effectiveness of a final rule pending
reconsideration. See EPA Mem. in Opp. to Sierra Club’s Mot.
for Summ. J. at 11, Sierra Club v. Jackson, No. 1:11-cv-01278
(D.D.C. Aug. 25, 2011). In any event, there is no textual basis
for EPA’s current interpretation.

     The court has explained that Section 7607(d)(7)(B)
“authorizes the agency to grant a stay during ‘such
reconsideration,’ a term that quite obviously refers back to the
reconsideration EPA ‘shall’ undertake when someone presents
an objection of ‘central relevance’ that was ‘impracticable’ to
raise during the period for public comment.” Clean Air
Council, 862 F.3d at 9 (emphasis added) (quoting 42 U.S.C.
§ 7607(d)(7)(B)). Regardless whether the three-month stay
authorized by Section 7607(d)(7)(B) is cabined by the word
“such,” the Delay Rule is the functional equivalent of a stay
under that section. It is based on industry petitions for
reconsideration and is the direct outgrowth of the three-month
stay EPA issued under Section 7607(d)(7)(B). In the Delay
                               26
Rule, EPA makes no finding that a 20-month delay is required
for regulated parties over and above the delayed compliance
dates in the Chemical Disaster Rule. Instead, EPA repeatedly
states that it was using the 20 months merely to reconsider
concerns expressed by industry and unidentified “other issues
that may benefit from additional comment.” Delay Rule, 82
Fed. Reg. at 27,133, 27,135, 27,140. It has neither adopted
industry concerns as its own nor proposed substantive changes
to the programmatic requirements of the Chemical Disaster
Rule. Because the Delay Rule is for all intents and purposes a
Section 7607(d)(7)(B) stay pending reconsideration for EPA to
decide what it wants to do, rather than a substantive
amendment to tools and programs in the Chemical Disaster
Rule, it cannot delay the effective date beyond three months.

     Nor is the Delay Rule authorized by Section 7412(r)(7).
Section 7412(r)(7) is a comprehensive accident prevention
regime affording EPA broad discretion as to regulatory tools,
albeit with multiple requirements.            Subparagraph (A)
references types of substantive actions that EPA may require
by regulation: “release prevention, detection, and correction
requirements which may include monitoring, record-keeping,
reporting, training, vapor recovery, secondary containment,
and other design, equipment, work practice, and operational
requirements.” Once EPA makes a substantive regulatory
choice — to add, modify, or subtract requirements — EPA
must set an effective date for that choice that will “assur[e]
compliance as expeditiously as practicable.” Subparagraph (B)
requires EPA to determine that such regulations “provide, to
the greatest extent practicable, for the prevention and detection
of accidental releases of regulated substances.”             And
subparagraph (E) provides that the three-month time limit of
Section 7607(d)(7)(B) applies to regulations promulgated
pursuant to Section 7412(r)(7). Reading the plain text makes
clear that Congress is seeking meaningful, prompt action by
                               27
EPA to promote accident prevention. In this way, the
framework of Section 7412(r)(7) does not differ significantly
from the “highly circumscribed schedule” analyzed in Reilly,
976 F.2d at 41, where the court held that EPA’s general
rulemaking authority under the CAA could not “trump the
specific provisions of the Act,” id. Section 7412(r)(7) contains
several “highly circumscribed” timing components. See S.
REP. No. 101-228, at 237–39.

     The Delay Rule is not the type of substantive amendment
authorized by Section 7412(r)(7). EPA has interpreted that
section as according it “flexibility to make a rule effective with
no specific outside date beyond that which ‘assur[es]
compliance as expeditiously as practicable.’” Delay Rule, 82
Fed. Reg. at 27,135. The Delay Rule states that “[i]n light of
EPA’s commitment to take further regulatory action in the near
future, with the potential for a broad range of rule
revisions . . . and the substantial resources required,” “several
industry trade associations” that had submitted “comment
agreed that the 20-month delay in the effective date would be
as expeditious[] as practicable.” Id. (emphasis added). But
EPA merely references arguments without standing behind any
of them. By its own repeated admissions in the preamble to the
Delay Rule, EPA has made no substantive decisions demanded
by Section 7412(r)(7). The preamble reveals no attempt by
EPA to consider how much time industry needs to comply, or
why 20 months, as opposed to some other period of delay, are
necessary. Nor does it engage with EPA’s determinations and
findings in the Chemical Disaster Rule with respect to
compliance dates. See 82 Fed. Reg. at 4675–80 (Part VIII).
Nor does EPA claim to have changed those findings or taken
any action with respect to them. Instead, EPA posits instead
that the Delay Rule is designed to allow it time to rethink “the
difficulties of compliance planning” while also claiming it is
not revisiting the compliance dates or the rationale underlying
                              28
them. Delay Rule, 82 Fed. Reg. at 27,137. But see id. at 27,144
n.23. To the extent EPA offers any reasoning — namely, that
“[a] delay of 20 months is a reasonable length of time” for it
“to engage in the process of revisiting issues in the underlying
[Chemical Disaster Rule],” id. at 27,136 — that reasoning does
not relate to what is “practicable” for compliance by regulated
sources; its explanation relates to its own “unidentified, new
‘policy preferences’ and the mere fact of reconsideration.”
Cmty. Pet. Br. 42 (quoting Delay Rule, 82 Fed. Reg. at 27,136).

     This makes a mockery of the statute. The Delay Rule does
not have the purpose or effect of “assur[ing] compliance” with
Section 7412(r)(7); it is calculated to enable non-compliance.
The Delay Rule removes both immediate and future obligations
under the Chemical Disaster Rule, authorizing regulated
facilities to ignore all pre-2019 deadlines. Delay Rule, 82 Fed.
Reg. at 27,142, 27,144 n.23. Read as a whole, Section
7412(r)(7)’s effective date provision is intended to provide a
short window of notice before facilities are required to comply
or prepare to comply with agency regulations. See 42 U.S.C.
§ 7412(r)(7)(E). In addition, the Delay Rule does not
demonstrate, or even acknowledge, that EPA considered
Section 7412(r)(7)’s statutory objectives, namely, to “prevent
accidental releases,” to “minimize . . . consequences of any
such release,” to “protect human health and the environment,”
and “to include procedures and measures for emergency
response after an accidental release.” Id. § 7412(r)(1),
(r)(7)(A), (r)(7)(B). The Delay Rule undermines these
objectives without explaining why implementation delay was
necessary; it refers only to the fact of EPA’s own
reconsideration. By contrast with EPA’s final, record-based
determinations in setting the Chemical Disaster Rule’s
effective and compliance dates, EPA makes no findings of its
own in the Delay Rule. It refers merely to alleged “security
risks” and other hypotheticals raised by industry without
                                29
endorsing those findings or concerns. See, e.g., Delay Rule, 82
Fed. Reg. at 27,136, 27,138, 27,140–41. Indeed, EPA
explicitly conceded that it “has not concluded [the Chemical
Disaster Rule] would increase such risks.” Id. at 27,141. The
Delay Rule thus contains no provisions that advance or
accomplish these goals, but instead delays these objectives
contrary to EPA’s prior determinations in a rulemaking.

     By delaying the effective date, EPA has delayed
compliance, reduced or eliminated the lead-up time to achieve
the compliance that EPA had earlier found necessary, and thus
has delayed life-saving protections. EPA may not employ
delay tactics to effectively repeal a final rule while sidestepping
the statutorily mandated process for revising or repealing that
rule on the merits. EPA states that it “does not wish to cause
confusion among the regulated community and local
responders by requiring these parties to prepare to comply with,
or in some cases, immediately comply with, rule provisions
that might be changed during the subsequent reconsideration.”
Id. at 27,139. But this “confusion” stems solely from the
confusion EPA has caused by the almost two-years’
reconsideration it desires in order to decide what it wants to do,
not compliance concerns relevant to regulated facilities’
implementation of the Chemical Disaster Rule. That is not a
basis for delaying protections. That the pre-existing rule
remains in effect during the delay period does not show the
Delay Rule satisfies Section 7412(r)(7). In promulgating the
Chemical Disaster Rule, EPA had found, and the record shows,
that there was a need for improvements to protect worker and
community safety, and to reduce facilities, injuries, life
disruption, and other harm. Chemical Disaster Rule, 82 Fed.
Reg. at 4599–600.

    Without regard to context, purpose, or history, EPA has
equated its authority to amend a final rule pursuant to
                                 30
applicable statutory requirements with authority to delay a final
rule merely because EPA is considering revising it. Delay
Rule, 82 Fed. Reg. at 27,133, 27,136, 27,138. The overarching
statutory purpose and design of the CAA, as well as the
statutory context of Section 7412(r)(7) and Section
7607(d)(7)(B), reject an interpretation that EPA can further
delay a final rule for reconsideration when it has neither
explained it has reached a different conclusion about
preventing accidental releases nor offered new evidence to
support a different conclusion, but has delayed a final rule
based on speculation about future amendments. That does not
conform to the carefully designed regime Congress envisioned
in the 1990 Amendments. Congress has twice emphasized the
finality of CAA rules by prohibiting reconsideration from
delaying a final rule. Section 7607(d)(7)(B) provides a strict
limit of three months on stays of effective dates pending
reconsideration, and Section 7607(b)(1) provides that a petition
for judicial review “shall not affect the finality of such rule . . .
and shall not postpone the effectiveness of such rule.” These
provisions (read in light of the history of the 1990
Amendments) show Congress intended EPA to act with
appropriate dispatch, not to delay protections. EPA points to
nothing that would allow a misuse of its substantive
rulemaking authority to evade these limits.

     EPA’s interpretation of its delay authority is not
reasonable because it has no stopping point. Nothing in the
text, context, structure, or history of the CAA supports
interpreting Section 7412(r)(7) as allowing delays akin to those
that prompted Congress to adopt the 1990 Amendments in
order to spur EPA action. As Community Petitioners note, the
absence of a date from the “practicable” clause in Section
7412(r)(7)(B) does not reveal a lack of legislative urgency for
effectiveness and compliance, but rather reflects Congress’s
acknowledgement that, depending on EPA’s regulatory
                               31
choices, some flexibility in timing might be required. See
Cmty. Pet. Br. 44 (citing S. REP. No. 101-228, at 234–35, 245).
EPA may not “substitut[e] [its] desires for the plain text” of the
Act. New Jersey v. EPA, 517 F.3d 574, 582–83 (D.C. Cir.
2008). Nor may it render illusory a limitation like Section
7607(d)(7)(B), which is designed to limit EPA’s authority and
facilitate judicial review by assuring finality and creating an
agency record. See S. REP. No. 101-228, at 372.

    For these reasons, the Delay Rule must be vacated. Our
holding is narrow, as our analysis makes clear. In the Delay
Rule, EPA has neither substantively amended — nor proposed
any substantive amendments to — the Chemical Disaster Rule,
but instead seeks to delay that rule pending reconsideration
during which it decides what it wants to do. EPA retains
authority under Section 7412(r)(7) to substantively amend the
programmatic requirements of the Chemical Disaster Rule, and
pursuant to that authority, revise its effective and compliance
dates, subject to arbitrary and capricious review.

                               IV.

     Moreover, EPA’s promulgation of the Delay Rule was
arbitrary and capricious. Although “[t]he scope of review
under the ‘arbitrary and capricious’ standard is narrow . . . the
agency must examine the relevant data and articulate a
satisfactory explanation for its action including a rational
explanation of the facts found and the choice made.” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983) (quotation marks omitted). When
an agency reverses itself, it “must show that there are good
reasons for the new policy,” but it need not show that “the
reasons for the new policy are better than the reasons for the
old one.” FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009) (emphasis in original). However, if the “new policy
                                32
rests upon factual findings that contradict those which underlay
its prior policy,” it must provide “a reasoned explanation . . .
for disregarding facts and circumstances that underlay or were
engendered by the prior policy.” Id. at 515–16; see also Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016)
(“[A]n ‘unexplained inconsistency’ in agency policy is ‘a
reason for holding an interpretation to be an arbitrary and
capricious change from agency practice.’” (quoting Nat’l
Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S.
967, 981 (2005))).

     EPA’s explanations for its changed position on the
appropriate effective and compliance dates are inadequate
under Fox and State Farm, and therefore arbitrary and
capricious, for several reasons. See 42 U.S.C. § 7607(d)(9).

     First, EPA repeatedly justifies the 20-month delay as
providing time for taking and considering public comment on
the Chemical Disaster Rule and any potential revisions or
rescission thereof. But EPA nowhere explains how the
effectiveness of the rule would prevent EPA from undertaking
notice and comment or other tasks for reconsideration, why a
delay is necessary to EPA’s process, or how the Chemical
Disaster Rule becoming effective on schedule would otherwise
impede its ability to reconsider that rule. See Public Citizen v.
Steed, 733 F.2d 93, 102 (D.C. Cir. 1984) (“Without showing
that the old policy is unreasonable, for [the agency] to say that
no policy is better than the old policy solely because a new
policy might be put into place in the indefinite future is as silly
as it sounds.” (emphasis in original)). Agencies regularly
reconsider rules that are already in effect. But as the Second
Circuit has pointed out, “a decision to reconsider a rule does
not simultaneously convey authority to indefinitely delay the
existing rule pending that reconsideration.” NRDC v. NHTSA,
894 F.3d 92, 111–12 (2d Cir. 2018) (citing Clean Air Council,
                              33
862 F.3d at 9). Thus, the mere fact of reconsideration, alone,
is not a sufficient basis to delay promulgated effective dates
specifically chosen by EPA on the basis of public input and
reasoned explanation, particularly where the statute requires
the agency to “assur[e] compliance as expeditiously as
practicable.” 42 U.S.C. § 7412(r)(7)(A). Further, under the
plain text of Section 7412(r)(7), the timeframe for effective or
compliance dates must be justified in terms of “assuring
compliance as expeditiously as practicable,” meaning that EPA
must explain why its proposed timeline is practicable for
regulated parties to comply with the rule expeditiously — not
for the agency to engage in the regulatory process. Id.
(emphasis added).

     Second, nothing in the Delay Rule explains EPA’s
departure from its stated reasoning in setting the original
effective date and compliance dates. In promulgating the
Chemical Disaster Rule, EPA considered comments
specifically about the rule’s proposed effective date and the
compliance timeline for various requirements, and explained
why it adopted or rejected the comments. See Chemical
Disaster Rule, 82 Fed. Reg. at 4675–78. For example, EPA
“received comments supporting the proposed one-year
compliance date for emergency response coordination
activities,” and “EPA agree[d] with commenters and [was]
finalizing a one-year compliance date for emergency response
coordination activities.” Id. at 4,677. As another example, one
commenter objected to a four-year compliance date for
emergency-response exercises and argued the deadline should
be one year; EPA disagreed because four years would “allow
owners and operators to develop an exercise program,” train
personnel, and familiarize themselves with guidance EPA
expected to develop after promulgation of the Chemical
Disaster Rule. Id.
                               34
     The Delay Rule does not explain its departure from EPA’s
previous conclusions regarding the appropriate and practicable
timeline for implementing the Chemical Disaster Rule. Nor
does it explain why the detailed factual findings regarding the
harm that would be prevented upon implementation of the
Chemical Disaster Rule are now only “speculative,” id. at
27,139, or why the entire rule must be delayed wholesale
despite its many different provisions with different effective
and compliance dates. Although EPA need not show that “the
reasons for the new policy are better than the reasons for the
old one,” it must provide “a reasoned explanation . . . for
disregarding facts and circumstances that underlay or were
engendered by the prior policy.” Fox, 556 U.S. at 515–16.
EPA has not done so. Instead, EPA attempts to minimize the
impact of the Delay Rule by asserting that by merely delaying
the overall effective date until February 2019, it leaves the
major compliance dates unaffected. Delay Rule, 82 Fed. Reg.
at 27,137 (“This rule does not impact compliance dates except
for those dates that would be triggered prior to February
2019.”). This assertion is incompatible with the EPA’s
statement in the Delay Rule — and the common-sense
conclusion — that “[a] delay of effectiveness will allow EPA
time for a comprehensive review of objections to the [Chemical
Disaster Rule] without imposing the rule’s substantial
compliance and implementation resource burden when the
outcome of the review is pending.” Id. at 27,136. EPA and the
Industry Intervenors contend that the Delay Rule has no
significant costs because it merely maintains the “status quo,”
as regulated sources are not required to comply with all but one
“major” provision until 2020. Putting aside EPA’s concession
that the Delay Rule immediately delays multiple “minor”
provisions and would delay the “major” first-responder
coordination provisions, the baseline for measuring the impact
of a change or rescission of a final rule is the requirements of
the rule itself, not the world as it would have been had the rule
                               35
never been promulgated. See Consarc Corp. v. OFAC, 71 F.3d
909, 913 (D.C. Cir. 1995) (“The legal definition of status quo
ante [is] . . . the last uncontested status which preceded the
pending controversy.” (quotations marks omitted)). The status
quo would be a Chemical Disaster Rule that went into effect on
March 14, 2017, with the ongoing compliance efforts by
regulated parties to meet the compliance deadlines set in that
rule.

     EPA cannot have it both ways. Either there would be
“substantial compliance and implementation” efforts by
regulated parties absent the Delay Rule, or the rule has no effect
on compliance requirements and does nothing more than
maintain the status quo with “speculative but likely
minimal . . . foregone benefits.” Delay Rule, 82 Fed. Reg. at
27,139. Therefore, EPA has failed to rationally explain its
departure from its previous conclusions about appropriate
compliance periods that it reached after specifically soliciting
and considering comments on the subject. See NRDC, Inc. v.
EPA, 683 F.2d 752, 760–61 (3d Cir. 1982) (“By postponing the
effective date of the amendments, EPA reversed its course of
action up to the postponement. That reversal itself constitutes
a danger signal.”).

     Third, contrary to EPA’s statement in the Delay Rule that
“the timing” of a “finding by the Bureau of Alcohol, Tobacco,
and Firearms . . . that the West Fertilizer explosion was caused
by arson” rather than an accident supports delay, that is not a
reasoned basis for delaying the entire Chemical Disaster Rule.
See 82 Fed. Reg. at 27,137–38. EPA cited many more
incidents than just the West, Texas disaster throughout the
development and promulgation of the rule. See, e.g., Chemical
Disaster Rule NPRM, 79 Fed. Reg. at 44,608 (“An April 8,
2011 explosion at [a plant in] Hawaii killed five workers who
were disposing of fireworks.”); id. at 44,616 (“In October
                               36
2007, five contractor workers were killed [at a plant] in
Georgetown, Colorado, when a fire occurred inside a
tunnel . . . . The CSB found that inadequate contractor safety
practices and oversight contributed to the accident.”); id. at
44,618 (citing the “CSB’s findings concerning a lack of
rigorous compliance audits in the 2005 BP Texas City Refinery
explosion” that killed fifteen plant workers); Chemical Disaster
Rule, 82 Fed. Reg. at 4599 (citing, in a section titled “Events
Leading to This Action,” “[i]n addition to the tragedy . . . in
West, Texas,” “an explosion and fire at the Tesoro Refinery in
Anacortes, Washington,” a fire “at the Chevron Refinery in
Richmond, California,” and “a fire and explosion at Williams
Olefins in Geismar, Louisiana.”). Even were the court to agree
for purposes of argument that the cause of the West, Texas
disaster being arson is relevant to some of the accident-
prevention provisions of the Chemical Disaster Rule, it is
irrelevant to the emergency-response and information-sharing
provisions, including those that have indisputably been delayed
from the original March 14, 2018 effective date. Given that
twelve of the fifteen fatalities in the West, Texas disaster were
local volunteer firefighters and other first responders, this
would be a fairly weak explanation for delaying provisions that
EPA previously determined would help keep first responders
safe and informed about emergency-response planning.

    Because EPA has not engaged in reasoned
decisionmaking, its promulgation of the Delay Rule is arbitrary
and capricious.

                             ***

    Accordingly, the court grants the petitions for review and
vacates the Delay Rule.
