Rebecca Bratspies
TOPICS IN LAW: Environmental Law/Administrative Law
Spring 2015
RULEMAKING
· Introduction
– Mississippi v. EPA
Purpose: Congress commands EPA to build an a margin of safety, and its judgement that this margin is adequate was no arbitrary or capricious.
EPA is not bound by CASAC’s recommendations.
Final promulgated rule must be accompanied by a statement of basis and purpose with respect to a proposed rule.
Court defers to EPA’s judgements not CASAC but EPA must explain why it disagreed with CASAC or agreed with them.
In order for the Court to overturn EPA standard NAQS they must find egregious procedural errors such as EPA’s failure to consider sensitive sub-populations, like asthmatics, children, or the elderly.
· Logical Outgrowth Test
– Environmental Integrity Project v. EPA
Substantive argument à Petitioners claim that Part 70 is arbitrary and capricious or otherwise unlawful.
Procedural argumentà Petitioners claim EPA’s actions violate the notice and comment requirements of the APA
Holdingà Court agreed that EPA’s final rule was not the “logical outgrowth” of the Agency’s proposed rule vacated the rule and remanded the matter to the Secretary.
The EPA changed its final rule based on public comments abandoning strict monitoring after being issued permits and instead implementing inadequate but periodic monitoring.
The petitioners argued that the final rule unlawfully, arbitrarily, and capriciously compel state permitting authorities to accept “inadequate but ‘periodic monitoring…without enhancement”.
Logical Outgrowth test à If the APA’s notice requirements mean anything, they require that a reasonable commenter must be able to trust an agency’s representations about which particular aspects of its proposal are open for consideration. a final rule is a “logical outgrowth” of a proposed rule only if interested parties should have anticipated that the change was possible, and thus reasonably should have filed their comments on the subject during the notice and comment period.” The “logical outgrowth” doctrine does not extend to a final rule that finds no roots in the agency’s proposal because ‘something is not a logical outgrowth out of nothing’ nor does it apply where interested parties would have had to “divined the agency’s unspoken thoughts”. Thus the court has refused to allow agencies to use the rulemaking process to pull a surprise switcheroo on regulated entities.
Interpretive rules à Merely represents an agency position with respect to how it will treat-typically enforce- the governing legal norm but do not establish a separate regulatory standard.
When statements intend to bind private parties or the agency itself with the ‘force of law’ it is a rule and are required adequate prior notice and opportunity to comment.
Holding: EPA’s final rule violated the APA’s notice-and-comment requirements – vacated the final rule and remanded to the Secretary.
· Exceptions to Notice & Comment Rulemaking
– Mack Truck v. EPA
Facts:
Navistar was running out of credits and might be forced to introduce engines into commerce because of noncompliant technology so EPA rushed to promulgate interim final rule solely for Navistar’s benefit. EPA made a final rule to permit manufacturers of heavy-duty diesel engines to pay nonconformance penalties in exchange for the right to sell noncompliant engines. EPA took this action without providing formal notice or opportunity for comment b
to the substance of NCP arguing that violated its own regulatory criteria for determining when such a penalty is warranted, and that EPA arbitrarily and capriciously set the amount of the penalty and the “upper limit” level of permissible emissions.
Holding: The court held that EPA lacked good cause for not providing formal notice-and-comment rulemaking, vacated the IFR and remanded for further proceedings.
Court’s Rationale: Here the court found that the only purpose of the IFR is “to rescue a lone manufacturer from the folly of its own choices.”). In other words, EPA was trying to save Navistar from economic ruin because Navistar screwed itself when the manufacturer made its own choice to continue to pursue a technology which, so far, is noncompliant.
Syncor v. Shala
Facts: Syncor Corp. appealed district court’s decision that FDA’s notice was not subject to notice and comment rulemaking. FDA made what it claimed it issued a guidance. The district court claimed it was an interpretive rule. Syncor filed suit claiming that FDA violated APA requirement that an agency engage in rulemaking give notice of proposed rulemaking to the public and give “interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments”. District judge favors FDA on all three claims. The appellate court distinguishes between a substantive and interpretative rule.
