Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global Warming

After the Supreme Court handed down its split 5-4 decision in Massachusetts v. EPA, various media outlets trumpeted the significance of the case. As one example, the Chicago Tribune proclaimed: EPA must regulate greenhouse gases. \u27 The problem, of course, is that the Court said no such thing. To be sure, the Court determined that greenhouses gases were air pollutants within the meaning of the Clean Air Act (CAA). But the Court\u27s opinion did not order the EPA to regulate with respect to climate change. Rather, the ruling remands the case to allow the agency to reconsider its denial of a petition to regulate the emissions of four pollutants associated with climate change from mobile sources under section 202 of the CAA. The ruling, in other words, leaves the EPA free to decide not to regulate, so long as it provides adequate justification for its decision. This means that what the media has touted as the global warming case may not actually lead to the regulation of global warming at all under the current CAA. So wherein lies the true significance of the case? We believe that the long-term significance of the case is likely to be the opinion\u27s impact on two doctrinal areas of the law: (1) the standing of states; and (2) the standard of review applied to denials of petitions for rulemaking. First, although we have some questions about the Court\u27s reasoning, we are encouraged to see the beginning of a framework for evaluating state standing based on the interest of the state in the litigation. Second, with respect to judicial review of agency inaction in the rulemaking context, the Court\u27s decision breaks new ground not only by confirming the reviewability of an agency\u27s denial of a rulemaking petition but also by closely scrutinizing the reasons that the EPA offered for its decision to decline to regulate. Note: This Colloquy Essay was part of a Symposium on Ordering State-Federal Relations Through Federal Preemption Doctrine

Lessons from the Lost History of \u3ci\u3eSeminole Rock\u3c/i\u3e

This Article informs the current debate over Auer v. Robbins (519 U.S. 452 (1997)) deference by exploring the roots of the Bowles v. Seminole Rock decision (325 U.S. 410 (1945)) and its subsequent reinterpretation through a creative approach. To do so, this Article offers a series of hypothetical opinions applying the various historical interpretations of Seminole Rock to a single set of facts. Part I places Seminole Rock in the constellation of deference doctrines in administrative law so that one can easily understand what the doctrine is and when it applies. Part II examines the transformation of Seminole Rock through a series of hypothetical D.C. Circuit opinions based on the facts of Decker v. Northwest Environmental Defense Center (133 S. Ct. 1326 (2013)). These opinions illustrate how courts have struggled to apply this expansive and untethered doctrine in the face of a growing administrative state. Part III offers observations from this exercise and urges reconsideration of Auer deference to reconcile the current doctrine with Seminole Rock\u27s historical roots

Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global Warming (Part II)

After the Supreme Court handed down its split 5-4 decision in Massachusetts v. EPA, various media outlets trumpeted the significance of the case. As one example, the Chicago Tribune proclaimed: EPA must regulate greenhouse gases. \u27 The problem, of course, is that the Court said no such thing. To be sure, the Court determined that greenhouses gases were air pollutants within the meaning of the Clean Air Act (CAA). But the Court\u27s opinion did not order the EPA to regulate with respect to climate change. Rather, the ruling remands the case to allow the agency to reconsider its denial of a petition to regulate the emissions of four pollutants associated with climate change from mobile sources under section 202 of the CAA. The ruling, in other words, leaves the EPA free to decide not to regulate, so long as it provides adequate justification for its decision. This means that what the media has touted as the global warming case may not actually lead to the regulation of global warming at all under the current CAA. So wherein lies the true significance of the case? We believe that the long-term significance of the case is likely to be the opinion\u27s impact on two doctrinal areas of the law: (1) the standing of states; and (2) the standard of review applied to denials of petitions for rulemaking. First, although we have some questions about the Court\u27s reasoning, we are encouraged to see the beginning of a framework for evaluating state standing based on the interest of the state in the litigation. Second, with respect to judicial review of agency inaction in the rulemaking context, the Court\u27s decision breaks new ground not only by confirming the reviewability of an agency\u27s denial of a rulemaking petition but also by closely scrutinizing the reasons that the EPA offered for its decision to decline to regulate. Note: This Colloquy Essay was part of a Symposium on Ordering State-Federal Relations Through Federal Preemption Doctrine

Litigation: Time to Revisit \u3cem\u3eChevron\u3c/em\u3e Deference?

This panel discussion took place on Thursday, November 13, 2014 at the Mayflower Hotel in Washington, D.C., prior to the passing of Justice Antonin Scalia. Justice Scalia\u27s impact on the development of administrative law in the United States is unparalleled

Litigation: Time to Revisit Chevron Difference

Article is a transcript from the 2014 National Lawyers Convention panel on Millennials, Equity, and the Rule of Law. A video recording of the panel can be viewed here. JUSTICE DON WILLETT: ... because Chevron deference is kind of like bacon. Some people like their Chevron deference rigid and crisp. Other people like it a little squishy and a little bendable. A few people dislike it altogether, no matter how it\u27s served. But Chevron\u27 is now thirty years old, older than a number of people in the audience today, and a lot has changed. The regulatory state has exploded, in terms of size and scope, over the last thirty years, becoming arguably a fourth branch of government altogether. So, is it time to revisit and think anew about judicial deference to agency decision-making? Do Chevron\u27s virtues outweigh the vices? Have courts gone too far? Has Chevron deference devolved into Chevron dereliction? Are courts moving increasingly from adjudication to abdication, letting the foxes guard the agency henhouse? So it is a thorny question that vexes the Court, and not along the usual ideological lines. We have three former administrative law professors on the U.S. Supreme Court. They have very fervent, strongly held views on Chevron and Chevron deference. And the Court is going to have, undeniably, some pretty high-profile opportunities in the near term, I believe, to revisit and possibly recalibrate Chevron