Environmental Defense Fund v. Thomas

627 F.Supp. 566 (1986)


In November of 1984, Congress enacted the Hazardous and Solid Waste Amendments of 1984, which amended the Resource Conservation and Recovery Act (RCRA). Section 3004(w) of RCRA, 42 U.S.C. § 6924(w), provides that 'not later than March 1, 1985, D shall promulgate final permitting standards under this section for underground tanks that cannot be entered for inspection. This deadline was not met. Ps filed this suit contending contend that D's ability to promulgate the regulations was further prevented by the unlawful interference of the Office of Management and Budget (OMB). Ps seek an order that D must promulgate the regulations by April 25, 1986. D and OMB want until June 30, 1986, to promulgate the regulations. Ds contend that this court has no jurisdiction to grant injunctive relief against OMB of this kind. Executive Order 12291 directs executive agencies to submit all proposed and final rules to OMB for pre-publication review to determine if they are consistent with certain criteria (e.g., the regulations must be based on adequate information, the potential benefits must outweigh the potential costs, the net benefits to society must be maximized, and the alternative involving the least net cost to society must be chosen). The order states that 'major rules' are submitted to OMB for review 60 days before publication of proposed rules and 30 days prior to publication of final rules. All other rules are submitted to OMB for review 10 days before publication of proposed rules and 10 days prior to publication of final rules. OMB is deemed to have concluded its review after expiration of these time periods unless it notifies the agency that it has extended its review pursuant to Section 3(f). This extension may be indefinite. OMB's authority is qualified by the rule. Section 8(a)(2) of EO 12291 exempts regulations 'for which consideration or reconsideration under the terms of this Order would conflict with deadlines imposed by statute or by judicial order.' Further, 'nothing in this subsection shall be construed as displacing the agencies' responsibilities delegated by law.' The executive order limits OMB's authority by authorizing OMB to exercise its review only 'to the extent permitted by law.' Ps contend that OMB's interference with the promulgation of the EPA regulations unlawfully delayed their promulgation, in violation of both the RCRA amendments and the Administrative Procedure Act (APA), 5 U.S.C. § 706. Plaintiffs argue that under 28 U.S.C. § 1331 and § 1361, this court may exercise inherent equitable powers to grant injunctive relief preventing further OMB interference. Ds claim that neither the RCRA nor the APA gives this court jurisdiction over OMB in this matter. Further, there is no jurisdiction to enforce any constraints found within the Executive Order itself.