Last week, the D.C. Circuit heard oral argument on a highly unusual attempt to short-circuit EPA’s rulemaking process for greenhouse gas regulation of existing power plants. Despite statutory and constitutional hurdles to premature litigation, the petitioners—the coal-fired industry and coal-producing states—argued that the importance of the proposed rule justifies court intervention.
The rule’s importance is precisely why it is critical that the agency complete the administrative process.
That industry groups will file lawsuits over EPA’s greenhouse gas initiatives is unremarkable. After all, litigation is to be expected: frequently, both the regulated community and public interest groups challenge major environmental rules. Nor is it unusual that interested parties may attempt to hijack a regulatory policy before a rule is finalized. Scholars have documented (for example, here, here, and here) the many contacts between agencies and regulated industries that occur at various stages of a rules’ development. What is more, contacts—from any interested party—are perfectly legal provided the agency discloses anything it relies on in support of the rule. Congressional pressure and Presidential direction may also be brought to bear on agencies during their decisionmaking processes.
But one institution stands apart: the courts. That the third branch will not interfere with agencies’ unfinished business is one of the strongest principles of both administrative and constitutional law. First, the whole point of proposing a rule and taking comments is to enhance the administrative law values of participation, deliberation, and transparency (for more on EPA’s efforts, see here). In short, agencies stand to learn something from commenters. They often change their minds following comment periods, issuing final rules that are different from those originally proposed or withdrawing a proposed rule altogether (as has happened with a prior proposed rule targeting GHGs). It makes no sense to engage the machinery of the courts before agencies have had the opportunity to learn and deliberate in connection with a comment period. If anything, these procedures are all the more important for important rules.
Nor does the Constitution endorse such inter-branch interference. Numerous statutory, common law, and constitutional rules protect these concerns. Hence, the Clean Air Act’s requirement that only final rules can be challenged; the Administrative Procedure Act’s similar provision; the ripeness doctrine that considers whether a rule is fit for review; and the standing doctrine’s requirement that injuries be actual and concrete.
Fortunately, the tenor of the questions at oral argument suggested that at least two members of the panel have serious concerns about interfering in a non-final rule. The Petitioners’ challenge can wait. Judicial review now would set a dangerous precedent, threatening one of the most democratic processes agencies undertake. Let the agency finish its work; after that, the courts will have something to review.
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Emily Hammond | April 21, 2015
Last week, the D.C. Circuit heard oral argument on a highly unusual attempt to short-circuit EPA’s rulemaking process for greenhouse gas regulation of existing power plants. Despite statutory and constitutional hurdles to premature litigation, the petitioners—the coal-fired industry and coal-producing states—argued that the importance of the proposed rule justifies court intervention. The rule’s importance is […]
Erin Kesler | April 20, 2015
The Center for Progressive Reform is excited to welcome its new policy analyst, Evan Isaacson who will focus on the Chesapeake Bay. Isaacson succeeds Anne Havemann, and will continue her sterling work on the intersection of state and federal environmental regulations and the Bay. Mr. Isaacson joins CPR after eight years on staff at the […]
Kirsten Engel | April 20, 2015
Reflections on the April 16th Oral Argument in Murray v. EPA and West Virginia v. EPA In a rulemaking there is a provision for judicial review, right, it’s not going to be a question that’s avoided . . . when the rule comes out, it’s going to be challenged, we’re going to get to it. Why in the […]
Thomas McGarity | April 17, 2015
Growing up in Port Neches, Texas, long before anyone ever heard of Earth Day, it was not hard to be an environmentalist. When my father announced that the family would be moving to Port Neches, he tried to soften the blow to his 13-year-old son by stressing the fact that we would be living across […]
Matthew Freeman | April 16, 2015
Rena Steinzor Steps Down after Seven Years at Helm, Succeeded by Loyola University New Orleans College of Law Professor, Former EPA Official The board of directors of the Center for Progressive Reform today announced the appointment of Robert R.M. Verchick to be the organization’s third president, succeeding Rena Steinzor, who has served in the post […]
James Goodwin | April 15, 2015
This morning, the House Judiciary Committee is holding a markup on the Regulations from the Executive in Need of Scrutiny Act of 2015, or REINS Act (H.R. 427). Even among the many extreme antiregulatory bills that Congress has considered this session, the REINS Act still stands out for its breathtaking audacity. If enacted, this bill […]
James Goodwin | April 14, 2015
Background: Tomorrow, the full House Judiciary Committee will be holding a markup of the H.R. 1759, the All Economic Regulations are Transparent Act of 2015 (ALERT Act), sponsored by Rep. John Ratcliffe (R-Tex.). The House of Representatives considered a similar bill during its last session. (The hearing is also noteworthy, because the committee will be […]
Erin Kesler | April 14, 2015
CPR Scholar and Georgetown University Law School professor William Buzbee testified at a House Subcommittee on Water, Power and Oceans Oversight hearing today entitled, “Proposed Federal Water Grabs and Their Potential Impacts on States, Water, and Power Users, and Landowners.” The Hearing concerned the EPA and Army Corp of Engineers' proposed "Waters of The US," rule related to water pollution and agriculture. […]
Robert L. Glicksman | April 10, 2015
As climate scientists have been telling us for years, and as all but the most obstinate climate deniers acknowledge, greenhouse gas (GHG) emissions from the combustion of fossil fuels are contributing to climatic changes. These changes have taken the form of melting ice sheets, rising sea levels, changes in wind and ocean current patterns, and […]