RULEMAKING 101. The APA & Rulemaking Process. Objective 3/22/ th Annual Administrative Law and Regulatory Practice Institute.

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1 RULEMAKING 101 9th Annual Administrative Law and Regulatory Practice Institute April 3, 2013 The APA & Rulemaking Process James W. Conrad, Jr. Principal Conrad Law & Policy Counsel Washington, DC Joan P. Dailey Senior Attorney, CMS Division HHS Office of General Counsel Washington, DC Andrew Emery Principal The Regulatory Group, Inc. Arlington, VA 2 Objective To provide basic understanding of federal procedure for making and reviewing rules. So agency lawyers can advise clients on how to minimize litigation risk So private parties and counsel Can participate in process Can evaluate if agency did it right Know what to look for when researching relevant issues 3 1

2 APA Overview 4 What is Rulemaking? The agency process for formulating, amending, or repealing a rule 5 Governing Law Administrative Procedure Act (APA) U.S.C. Chs. 5 and 7 Substantive statutes Govern if specify procedure E.g., OSH Act, TSCA, CAA, FTCA Other procedural statutes, such as: Regulatory Flexibility Act (RFA) Paperwork Reduction Act (PRA) Federal Advisory Committee Act (FACA) Congressional Review Act (CRA) 6 2

3 Executive Branch Oversight E.g.: EO 12866, Regulatory Planning & Review EO 13563, Improving Regulation and Regulatory Review EO 13132, Federalism 7 APA Publication Provisions 5 USC 552(a) 3 Buckets: Publish in the Federal Register: Substantive and procedural rules; statements of general policy; interpretations of general applicability Exception: actual and timely notice Reading room records (a.k.a. publication rules): Statements of policy; interpretations; repeatedly FOIA d records FOIA 8 Practice Tips It s all about FAIRNESS! Limiting executive power and preventing secret law Due process: notice & opportunity to be heard What laws govern the rulemaking at issue? 9 3

4 The Rulemaking Process 10 Types of Rulemaking Informal Rulemaking Notice & comment (N&C) rulemaking Generic, faster (?), general applicability Formal Rulemaking (5 U.S.C. 556 & 557) Adjudicatory hearing Appropriate for agency fact finding Dead letter Hybrid Rulemaking Combination of both Required by some statutes (e.g., TSCA, OSH Act) 11 Informal Rulemaking Overview 5 U.S.C. 553 Notice of proposed rulemaking (NPRM) in Federal Register (FR) Public comment on same Final rule in FR Imposition of additional procedures By statute? OK By executive order, rule or agency practice? OK By courts? Not OK (Vermont Yankee) 12 4

5 Gathering Information First stage of rulemaking process, though not addressed by APA Useful in shaping agency s initial approach, avoiding reliance on no or bad data Agencies sometimes solicit information by notice or public/ stakeholder meeting Have to be careful not to inadvertently create an advisory committee subject to FACA 13 Gathering Information Most major regulatory statutes authorize requests addressed to regulated entities Not really requests mandatory Under PRA, OMB must approve information collection requests (ICRs) to 10 people Public can comment on ICR re utility, burden 1st notice comments to agency 2d notice comments to OMB Can always send in unsolicited information 14 ANPRMs (Advance Notice of Proposed Rulemaking) Not addressed by APA Pre NPRM request for comments Good way to float novel ideas, narrow or redirect proposal 15 5

6 Notice and Comment Process 5 USC 553 The NPRM must include: Time, place, and nature of public rulemaking proceedings Legal authority for the rule Either the terms/substance of proposed rule or a description of subjects and issues involved Agency must provide opportunity for public comment Agency must consider relevant comments 16 NPRMs Usually preamble and regulation text. Some Clean Air Act proposals have had only preamble; text on website. APA requires only description of terms, substance of rule or subjects, issues involved. May propose several alternatives Solicits comments on issues raised Never expire. May be used as guidance for years before being finalized, superseded or Exceptions to Notice & Comment Military or foreign affairs Agency management or personnel matters, public property, loans, grants, benefits, or contracts Good cause to skip prior public comment Interpretive rules, general statements of policy (i.e., guidance), or procedural rules 18 6

7 Good Cause Exception Agency can skip prior notice and comment (N&C) procedure with good cause I.e., impracticable, unnecessary, or contrary to the public interest Narrowly construed Agency must publish good cause statement in the preamble to the final rule. 19 Petition for Rulemaking Request for the issuance, amendment, or repeal of a rule Agency decision not to initiate rulemaking is given high level of deference 20 Types of Rules Legislative (substantive) rules Subject to APA N&C procedures Interpretive rules Statements of policy Procedural rules Subject to publication requirement, but not N&C 21 7

8 Legislative Rules Modify or add to the legal norm Create new laws, rights, or duties Force and effect of law Binding on all 22 Interpretive Rules Advise public of agency s interpretation of its laws or regs Do not independently have force and effect of law Legal force is derived from the law or reg being interpreted Do not create new law 23 Statements of Policy Advise public prospectively of the manner in which agency will exercise a discretionary power (e.g., enforcement) Not legally binding (i.e., guidance) 24 8

9 Procedural Rules Relevant to agency s organization, procedures, or practices Do not establish, clarify, or interpret laws or substantive rules Examples: elimination of expedited approval process; rejection of incomplete application; agency rulemaking procedures 25 Legislative vs. Interpretive Murky waters American Mining test for a legislative rule: In the absence of the rule, there would not be an adequate legislative basis for enforcement or other agency action; Agency has invoked general legislative authority; or The rule effectively amends a prior legislative rule 955 F.2d 1106, 1112 (D.C. Cir. 1993) 26 Legislative vs. Interpretive Example: Saying what CAA 112 average emission limitation achieved by the best performing 12% of existing sources standard means (interpretive) vs. Setting emission standards under same (legislative) 27 9

10 Legislative Rule or Not? Does the guidance establish a binding norm? (legislative) Does the agency retain discretion to apply the guideline or not? (statement of policy) Does it have direct or significant effect on substantive rights? (legislative) Agency characterization of rule is not dispositive 28 The Comment Period APA requires opportunity to submit written data, views or arguments No required minimum comment period under APA E.O says should be not less than 60 days in most cases Reality: often 30 days 15 day FR Act minimum for public meetings cited in AG Manual as a general statutory standard of reasonable notice. FR notice specifies deadline for comments 29 Practice Tip Counsel agency to consider a longer comment period, if possible, for complex rules. Interested parties may need more time to digest and analyze a complex proposal Agency decision making and rationale may benefit from more thoughtful comments 30 10

11 Oral Communications APA does not address permissibility of meetings and other informal contacts before, during or after comment period Concept of ex parte does not apply to rulemaking. See Sierra Club v. Costle, 657 F.2d 298 (DC Cir 1981) Agencies usually have policies regarding such communications growing out of concerns about appearances of impropriety 31 Practice Tip Counsel agency to maintain record of postcomment period contacts Meeting agendas, summaries Copies of post comment materials and letters Counsel agency to meet with more than one side 32 Practice Tip: Drafting Effective Comments Explain issue clearly and thoroughly Suggest reg text language Use descriptive captions Praise what agency got right Provide independent scientific, legal, and economic impact analyses Offer specific alternatives consistent with rule s purpose and statutory objectives 33 11

12 Effective Comments Alternatives: Ask for something the agency can actually do Logical outgrowth of / w/in scope of the notice Would not require statutory change or changes to regs not within scope of NPRM Suggest standards that are enforceable Spell out solution that works for your client AND addresses agency s concerns Give agency basis for final rule conclusions Someone must raise issue in comments or it can t be raised on review 34 Effective Comments Weave law/facts/policy into compelling story Executive Summary for lengthy comments Suitable for press, Hill; consider sending to them. Send courtesy copies to key program office managers and staff 35 The Final Rule: Contents Concise general statement of basis and purpose (APA) Discussion of changes from the NPRM, why Responses to significant issues Reg text to appear in CFR Regulatory Impact Statement 36 12

13 The Final Rule: Effective Date APA: at least 30 days from publication Exception (shorter): Substantive rule granting exemption, relieving restriction Interpretive rule Good cause found by agency and articulated in preamble to final rule Changing effective date is substantive and requires N&C Congressional Review Act can delay eff. date 37 Direct Final Rule Invented by EPA for noncontroversial rules (i.e., good cause b/c proposal presumed unnecessary). Now used by many agencies A final rule, effective in X days, UNLESS adverse comments are received w/in that time. NPRM usually published simultaneously. If adverse comments are received, DFR is rescinded, agency considers comments and moves toward final rule 38 Interim [Final] Rule Commonly used if NPRM skipped for good cause Usually seeks additional comments No requirement to issue a new rule (usually) Reviewable just like any other final rule Can serve as basis of subsequent final rule if original good cause claim was valid 39 13

14 Technical Correction Rule New final rule fixing error(s) in previous final rule Common in complex rules with quick deadline Sometimes have to sue to get; sometimes agencies issue voluntarily Better/more agency/public communication between NPRM and final rule would help No inherent agency power to correct errors; still need to satisfy good cause exception if no NPRM 40 The Logical Outgrowth Doctrine Governs how much the agency can change its mind from NPRM to final rule Basic rule: no APA violation if final rule is within the scope, and a logical outgrowth, of NPRM Final rule can be substantially different from the NPRM as long as agency fairly apprised the public of the possibility of changes of the type that occurred Notice is inadequate if interested parties could not reasonably have anticipated the final rule from the NPRM 41 Application of Logical Outgrowth Agencies usually describe and solicit comment on multiple potential alternatives Whether public adequately apprised of such alternatives often turns on specificity of description Ex: if Agency proposes Option A or B, may not pick A and B without explicit statement in proposal Comments can t supply notice of new idea, but can be evidence that that idea was implicit in proposal If Agency wants to select new alternative for which notice not adequate in NPRM, may issue supplemental notice or NODA Actual notice to interested parties can cure inadequate notice in some circumstances 42 14

15 The Administrative Record What Is It? ALL & ONLY information the agency relied upon to develop the rule ALL & ONLY information the court can rely on in judicial review Agency mostly gets to decide what will be included in the record, except for public comments and supporting materials 43 Administrative Record What s In It? NPRM and final rule Agency s own research (e.g., Background Information Documents) Other information, data, research, and supporting documentation All public comments and supporting materials Transcripts/notes of public hearings or public meetings Notes of other meetings with outside parties Response to Comments document (typically) 44 NODA Notice of Data Availability How agencies get comment on new information that becomes available after a comment period closes Not second bite at other issues Can be used for industry supplied data

16 Practice Tip Useful for private counsel to review record See what other commenters are saying (rebut? hints as to direction of final rule) May not support agency (useful in commenting or judicial review) Legislative history for compliance counseling Sometimes record documents not available by beginning of comment period seek extension All agency dockets on Web 46 Practice Tip Instruct agency to print and maintain copies of any information for which it provides an internet citation in the preamble. Websites frequently change Printed copies ensure complete rulemaking record 47 Practice Tip Encourage agency to articulate guiding principles for the regulation Helps agency see forest through the trees, rescues those in the weeds Principles should be consistent with statutory authority Policy choices and responses to comments should be consistent with guiding principles Preamble provides courts and regulated entities guidance and interpretation of reg s meaning and agency intent 48 16

17 Practice Tip Read impact statement carefully Ensure that it accurately characterizes the rule Discrepancies can fuel litigation 49 OMB Office of Information & Regulatory Affairs (OIRA) Reviews agency actions for compliance with executive orders and PRA. Issues guidance (memos, bulletins and circulars) detailing how agencies are to comply with the executive orders and statutes it oversees. E.g., Circular A 4, Regulatory Analysis, Sept. 17, 2003 Information Collection Under the PRA (PRA Primer), April 7, Regulatory Reform Proposals REINS Act Would require Congress affirmatively to enact major rules Regulatory Accountability Act Sweeping overhaul of APA: EO type considerations judicially reviewable ANPRMs for major rules; hybrid rulemaking for $1 billion/year impact rules 51 17

18 Regulatory Reform Proposals Independent Regulatory Agency Analysis Act Would authorize President to extend EO review to rules of independent regulatory agencies (e.g., FCC, CFTC) Sue & settle legislation Notice of, opportunity to intervene in settlement negotiations re challenges to rules Something more moderate in 2013? 52 APA Resources A Guide to Federal Agency Rulemaking by Jeffrey S. Lubbers (new 5th edition!) Federal Administrative Procedure Sourcebook Contains APA, AG Manual on APA (1947), Fed. Reg. Act, FACA, RFA, etc AG report on administrative procedure Federal Register Document Drafting Handbook 53 Judicial Review of Agency Rulemaking Christine Kohl Senior Counsel Civil Appellate Staff U.S. Dep t of Justice Richard G. Stoll Partner Foley & Lardner LLP Washington, DC John Wagner Senior Counsel American Petroleum Institute Washington, DC 54 18

19 Overview What law governs? What court? When to file? Sue or intervene? Stay pending complete review? Hurdles to overcome Standard of review What if you win? 55 What Law Governs? Many regulatory statutes have judicial review provisions. These control where they exist. APA 10 applies otherwise (5 USC ) APA 10 does not create jurisdiction in pure sense, but creates a right of action that triggers jurisdiction under 28 U.S.C What Law Governs? APA 10(e), 5 U.S.C. 706 Court shall compel agency action unlawfully withheld or unreasonably delayed; and Hold unlawful and set aside agency action, findings, and conclusions found to be Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; Contrary to constitutional right, power, privilege, or immunity; In excess of statutory jurisdiction, authority, or limitations, or short of statutory right; Without observance of procedure required by law 57 19

20 What Law Governs? APA creates presumption of judicial review for final agency action not otherwise reviewable. Exceptions: Review specifically precluded by statute, e.g., Medicare contains more than 25 provisions precluding judicial review of rules [C]ommitted to agency discretion by law (5 U.S.C. 701(a)(2); see Heckler v. Chaney, 470 U.S. 821 (1985)) Finality discussed below 58 What Law Governs? Exhaustion of administrative remedies required? Some statutes specify procedure to be followed before lawsuits can be filed challenging a rule. See e.g., Shalala v. Illinois Council On Long Term Care, Inc., 529 U.S. 1 (2000). E.g., CAA 307(d)(7)(B) requires challengers to first file a petition for reconsideration if the grounds for challenge arose after the comment period closed or it was impracticable to raise the issue then 59 What Court? APA says a court of competent jurisdiction, which usually means federal district court; which one depends on venue law (see 28 U.S.C. 1391) Hobbs Act vests original jurisdiction in Courts of Appeals for certain challenges to certain agency actions (see 28 U.S.C. 2342) Many environmental statutes specify venue for particular issues. D.C. Circuit often specified for nationally applicable rules (e.g., RCRA, CERCLA, CAA) Relevant circuit for CAA regional rules CWA: circuit in which person resides or transacts business; may have a choice (NOTE: some CWA rules go to federal district courts) 60 20

21 When to File? APA sets no deadline. General SOL for claims against US is 6 years (28 USC 2401(a)). Statutory review provisions typically establish jurisdictional filing windows Set # of days after promulgation Promulgation occurs with FR publication, NOT rule signing (even though signing can satisfy deadlines established by statute or consent decrees for issuing rules). Note, however, that rule is deemed published for State Farm purposes when on public display at OFR. Exception to some window statutes: Grounds arising after 61 Sue or Intervene? Can file own complaint (district court) or petition (circuit court) Or intervene in someone else s case Must have an interest in the case that could be adversely affected by a decision, and None of the existing parties to the case will adequately represent your interest, and Must be timely Although there is no analog to Fed. R. Civ. P. 24 in F.R.A.P., appeals courts rely on same criteria 62 Sue, Intervene, or File Amicus Brief? Can intervene in attack on agency rule Adverse impact of rule But can have standing problems (more later) Fear bad precedent (difficult to sustain) Much more difficult to intervene in support of agency rulemaking Can still have standing problems depending on Circuit Doubtful if rule constitutes property or transaction for Rule 24(a) purposes Problems: Intervenors typically excluded from settlement negotiations But intervenors may be subject to res judicata 63 21

22 Interim Relief Agency or court can stay rule pending review under APA 705 unless authorizing statute precludes Temporary Restraining Order & Preliminary Injunction Challenger has to meet requirements for injunction: Likelihood of success on merits Harm to challenger if stay not granted Harm to others if stay is granted Public interest 64 Finality Final agency action? Usually no question with rules. Note everything an agency does is NOT agency action. See Norton v. So. Utah Wilderness Alliance, 542 U.S. 55 (2004). Some question with interpretive rules or guidance/policy statements (and recall preambles). Bennett v. Spear: Issue is whether document Marks consummation of decisionmaking process; and Determines rights & obligations; legal consequences flow from it 65 Ripeness/Enforcement APA allows collateral challenge to rule as defense to enforcement action Pre enforcement review permissible if issue is ripe. Two questions (Abbott Laboratories v. Gardner, 387 U.S. 136, (1967)): Is the issue fit for judicial decision? Purely legal? Sufficiently crystallized? What is hardship on challenger if review deferred? 66 22

23 Ripeness/Enforcement Sometimes pre enforcement review expressly authorized (e.g., judicial review provisions) Window provisions also cut it off May preclude collateral challenges as defenses to an enforcement action Typically substantive attacks OK, procedural attacks not When in doubt, file. 67 Standing Original theory: Constitution Art. III cases or controversies ; ensure litigants have personal stake, really care about outcome, fight hard and well Requires: Injury in fact Causation Redressability Also zone of interests test prudential (not Constitutionally based) 68 Standing Injury Lujan v. Defenders of Wildlife (general plans to view wildlife abroad not sufficiently concrete) Is increased risk of injury injury in fact? No Summers v. Earth Island Institute (only a chance, not a likelihood) Yes Monsanto Co. v. Geertson Seed Farms (incurred costs to avoid risks) No purely procedural injury (Summers) Zone of interests HWTC (RCRA not intended to protect business interests of waste treatment industry) 69 23

24 Grocery Manufacturer s v. EPA Challenge to the change in gasoline specifications to allow 15% ethanol DC Circuit held engine manufacturer s and petroleum industry did not have Article III standing, no direct injury Court held that the food group did not have prudential standing, not within the zone of interest 70 Standing for Intervenors D.C. Circuit requires intervenors to show standing; Fifth and Eleventh Circuits do not. But See Diamond v. Charles. Even when supporting the government; government often opposes supporters E.g., Sherley v. Sebelius (Stem Cell Case) Result: no standing or no interest if only stake is fear of bad precedent E.g., Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508 (11th Cir. 1996) 71 STANDARD AND SCOPE OF REVIEW APA, 5 U.S.C 706 Standard of Review Scope of Review HOW the court reviews WHAT the court reviews 72 24

25 Standard of Review Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; Contrary to constitutional right or power; In excess of statutory jurisdiction or authority; Without observance of required procedures. 73 Procedural Challenges No NPRM and no or inadequate explanation why (e.g., good cause exception) Comment period too short NPRM inadequate; not logical outgrowth No further N&C after remand: see Chamber of Commerce v. SEC, 443 F.3d 890 (D.C. Cir. 2006) Inadequate time before rule takes effect Failure to comply with other statutes procedural & consultation requirements But see Vt. Yankee v. NRDC, 435 U.S. 519 (1978) 74 Substantive Challenges Big picture questions for the court: What is the problem and How did the agency address it? > Court reviews only the reasons given by the agency: SEC v. Chenery, 318 U.S. 80 (1943); post hoc rationalizations of litigation counsel can t save the rule > Is the rule necessary? Does it make sense? 75 25

26 Did Congress Give the Agency Authority to Promulgate the Rules? Important for deference: United States v. Mead Corp., 533 U.S. 218 (2001) No deference for interpretation of statute agency does not administer Need not be specific: Mayo Found. v. United States, 131 S. Ct. 704 (2011) 76 Is the Rule Consistent with the Agency s Statutory Authority? Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) Step One: Has Congress directly spoken to the precise issue, or is there ambiguity? Court decides, using traditional tools of statutory construction, e.g., text, structure, statutory purposes & findings, legislative history No deference to agency at this stage FDA v. Brown & Williamson, 529 U.S. 120 (2000) 77 Step Two: If statute is ambiguous, or if Congress left gaps for the agency to fill, is the agency s interpretation of the statute reasonable? Agency entitled to deference if its interpretation is reasonable Agency s interpretation need not be the best or the one preferred by the court Agency s interpretation can trump prior court interpretation under Step Two: NCTA v. Brand X Internet Servs., 545 U.S. 967 (2005) 78 26

27 Practice Tip for Agencies In general, don t limit interpretation to Step One or Step Two; present alternative views E.g., Statute is clear, but if it is considered ambiguous, this is what it means and here s why Give court something to defer to; if agency limits interpretation to Step One, court cannot defer to agency expertise A Step Two interpretation gives agency leeway in the future 79 Skidmore Deference Agency interpretations set forth in less formal issuances e.g., policy statements adopted without public input are generally entitled to only respect, depending upon their thoroughness, consistency, and power to persuade: Skidmore v. Swift & Co., 323 U.S. 134 (1944) But see Barnhart v. Walton, 535 U.S. 212 (2002) 80 Is The Rule Arbitrary or Capricious? Agencies are entitled to deference for their expertise, predictive judgments, & cost benefit analyses Agencies are entitled to presumption of regularity (but can be rebutted) Agency must respond to all significant comments Agency must reasonably explain departure from past interpretations, policies, rules, etc. Generally no heightened scrutiny of rule rescinding earlier rule or effecting policy change: FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) A & C standard varies; e.g., more deference to decision not to institute rulemaking, where resource based 81 27

28 Motor Vehicle Mfrs. Ass n v. State Farm Mut. Ins., 463 U.S. 29 (1983) Is there a rational connection between the facts found and the choice made? Is the decision based on a consideration of the relevant factors identified by Congress? Did the agency rely on factors that Congress did not intend for it to consider? Did the agency fail to consider an important aspect of the problem? Does the evidence in the rulemaking record support the rules? Did the agency ignore evidence? 82 Compare Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011) (rule found to be arbitrary and capricious because, among other things, it failed to consider economic effects, as statute required) with American Petroleum Inst. v. EPA, 684 F.3d 1342 (D.C. Cir. 2012) (rule upheld because agency gave proper consideration to scientific study and explained reasons for disagreeing with it) 83 Practice Tip for Agencies NPRM & Final Rule should identify studies on which agency relies: see Chamber of Commerce v. SEC, 443 F.3d 890 (D.C. Cir. 2006) APA, 5 U.S.C. 553(c), requires a concise general statement of [the rule s] basis and purpose. >> Don t take that literally! Err on the side of providing more explanation in the preamble 84 28

29 Does the Rule Violate Other Statutes and Requirements? For example NEPA Regulatory Flexibility Act 85 Does the Rule Violate the Constitution? Courts avoid reaching constitutional issues whenever possible Constitutional challenges to rules themselves: Hearing procedures prescribed by a rule violate due process Rules (e.g., drug testing regs) violate Fourth Amendment Rules are void for vagueness (important if criminal penalties are possible) 86 Scope of Review WHAT does the court review? [T]he whole [rulemaking] record or those parts of it cited by a party (5 U.S.C. 706) Generally, no external material (e.g., declarations submitted during the litigation): Camp v. Pitts, 411 U.S. 138 (1973); but see Fla. Power & Light v. Lorion, 470 U.S. 729 (1985) Only issues raised during the rulemaking; otherwise, it defeats the purpose of notice andcomment 87 29

30 And last, but not least [D]ue account shall be taken of the rule of prejudicial error (5 U.S.C. 706) Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479 (9th Cir. 1992) 88 Many Challenges Never Fully Litigated Where statutes have sue now or forever hold your peace provisions, many parties out of caution sue now. Some parties use as leverage to negotiate revisions, with or without administrative petitions for reconsiderations. D.C. Circuit cases routinely held in abeyance for (1) settlement discussions, and/or (2) new followup rulemaking. 89 Many Challenges Never Fully Litigated Common for followup rulemaking to resolve issues to be litigated and judicial challenge then dropped after years of abeyance. Also common (especially EPA cases) for parties on opposite sides of issues to challenge rules. So when followup rule resolved issues in one side s favor, other side may litigate followup rule

31 What if You Win? APA 706: The reviewing court SHALL... hold unlawful and set aside agency action found to be arbitrary/capricious, in excess of statutory authority, etc. Vacatur vs. Remand If court vacates rule (or portion of rule), rule is GONE. If court remands rule (or portion), rule stays in effect while agency does repair work. 91 What if you win? D.C. Circuit very inconsistent in approach to vacatur vs. remand. See Daugirdis article 80 N.Y.U.L. Rev 278 (April, 2005). Recent D.C. Circuit case found serious reasoned decisionmaking flaws in EPA rule, but remanded instead of vacating. PCA v. EPA, 665 F.3d 177, D.C. Cir Interesting Remand v. Vacatur Example EPA s Clean Air Interstate Rule (CAIR) issued 2005, affecting power plants in eastern half of U.S. D.C. Circuit held CAIR violated Clean Air Act with several fundamental flaws and VACATED the rule. North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). But parties who won didn t want vacatur, only remand, and convinced court to rescind vacatur and issue remand instead. Purpose: so CAIR could stay in place until EPA issued followup rule fixing fundamental flaws

32 Interesting Remand v. Vacatur Example With CAIR still in place EPA issues Cross State rule to replace CAIR in Cross State rule much more stringent than CAIR, and many electric utilities challenged in D.C. Circuit. D.C. Circuit stayed Cross State rule (in response to utilities motions) at end of Stay order specified CAIR to remain in place. 94 Interesting Remand v. Vacatur Example D.C. Circuit issued opinion on merits VACATING Cross State rule August 2012, finding rule violative of Clean Air Act. Made clear CAIR would stay in place until EPA could fix flaws in rule. EME Homer City v. EPA, 696 F.3d 7 (D.C. Cir. 2012) Will probably be years before EPA issues new rule. Thus CAIR, which D.C. Circuit ruled in 2008 violative of Clean Air Act for several fundamental flaws, remains law of the land. 95 What if you win? Remember you haven t won until the mandate issues. See FRAP 41. Mandate held up until 7 days past deadline for rehearing petitions (45 days + 7), and also held up during pendency of rehearing petitions. Also may be held up pending cert petitions. Thus vacated rules (or portions) may remain fully in effect for months after reviewing court holds invalid

33 What if you win? A win often simply re starts full or partial rulemaking followed by more judicial review followed by another win or loss followed by more judicial review over decades. You can often win by settling. D.C. Circuit is more than happy to hold cases in abeyance pending settlement process. 97 Questions? 98 33