Regulatory practice highlights this week seem to focus on the margins of general practice and unique relationships of specialty practice. In one decision, a court of appeals held that an agency failed to follow statutory requirements that supplanted the default requirements while a district court stayed and remanded an unusual regulation as adjudication for failure to provide a reasoned decision. New policy guidance may help the States and industry deal with the most rapidly developing non-drone transportation technology issue. And more to come. Continue Reading
Monday Morning Regulatory Review – 9/19/16: Firearms & Mental Health; Plain Future Contingencies; and Medical Facility Preparedness Standards
Posted in Judicial Process, Judicial Review & Remedies, Regulatory ProcessThe campaign for the White House overshadows regulatory practice for another week, but some unique issues deserve note. In one decision, a court of appeals reversed and remanded a dismissal order for further consideration of constitutional issues by the district court in an instance where Congress defunded a regulatory relief program that might have avoided the issues entirely. In a second decision, a divided court of appeals panel remanded part of a regulation to an agency as inconsistent with the plain meaning of the authorizing statute creating a conceptual intercircuit conflict. The agency regulation process highlight of last week deals with incorporation by reference with now-superseded consensus standards. Continue Reading
Monday Morning Regulatory Review – 9/12/16: Silence, Gaps, Limits & Tips; Flashing Lights, Highway Guidance & Standing; and Remanded Emissions Budgets Return
Posted in Judicial Process, Judicial Review & RemediesTwo interesting cases were handed down last week. One is a complicated dissent from denial of a petition for rehearing en banc that raises questions of agency regulation of a subject that falls either in a gap in the statute or outside the subject of the statute. The second case focuses on standing to challenge internal guidance that structured discretion. From an agency, the latest response to a judicial remand in the saga of cross-state air pollution. Continue Reading
Monday Morning Regulatory Review – 9/5/16: Guns, Drugs, and Guidelines; Nonacquiescence Not Arbitrary and Capricious; & Anti-Bacterial Soap and Passport Over-Regulation
Posted in Judicial Review & Remedies, Regulatory ProcessLabor Day 2016 will be no holiday for regulatory experazzi, at least in this post. Last week, a court of appeals affirmed dismissal of a host of constitutional claims that overshadowed an ineffectively plead Administrative Procedure Act (APA) claim – and the decision reprises the circuit law on when guidance becomes a rule only to show the futility of permitting an amended complaint. On the other hand, a district court dispatched an attempt to force an agency to nonacquiesce in another court of appeals decision – in an entirely different circuit. Finally, the most substantive regulation of the week overshadowed a final rule that should not have been a rule in the first place. Continue Reading
Monday Morning Regulatory Review – 8/29/16: School Gender Identity Guidance Enjoined; Medicare Reconciliation Criteria; Food Rules Compliance Reality; Broadcast Ownership Again – Still & Heavy Speed Limiters
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessSummer’s end (not Childhood’s End) brings the opening of schools across the country without the looming Administration guidance on gender identity. More complex is the new overhang of Medicare hospital reimbursements that may not be recouped because of an agency failure to adopt criteria through notice and comment rulemaking. On the other hand, in reality meets litigation, compliance with a series of regulations commanded by Congress and a court will be delayed by practicality – and may be amended. Thrice rejected broadcast ownership rules returned from the agency and appear to be headed back to court. And speed limiters for heavy trucks may be on a nearer horizon with the release of a draft proposed rule. Continue Reading
Monday Morning Regulatory Review – 8/22/16: Tobacco Products Guidance Vacatur; Waters Abeyance; Swaps Remand Response & Medium and Heavy Duty Emissions
Posted in Judicial Process, Judicial Review & Remedies, Regulatory ProcessA hodgepodge of actions occurred in regulatory practice last week, including a district court decision vacating part of an agency guidance and a court of appeals decision to hold in abeyance litigation on regulatory efficacy to avoid possible conflicts with a sister circuit. One agency published a final response to a remand that raises old questions about remand without vacatur while two other agencies released a draft final leviathan with a decades long implementation. Continue Reading
Monday Morning Regulatory Review – 8/15/16: Energy, Coolers & Carbon, and Crude Oil Trains Time
Posted in Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory ProcessA summer lull in regulatory practice provides two significant actions are worth noting. The first major challenge to the Administration’s theoretical Social Cost of Carbon (SCC) came up short – as did a bevy of other challenges in a court of appeals. At the other end of the procedural spectrum, an agency publishes today a final rule that was dictated by Congressional enactment – but still suggests the need for an exception from advance notice and an opportunity for public comment and a regulatory analysis. Continue Reading
Monday Morning Regulatory Review – 8/8/16: Political Free Speech; Tax Preparers End & Intercircuit Nonacquiescence and Consistency
Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Judicial Review & RemediesThree highlights from the past week in regulatory practice: One court of appeals found that an agency regulation likely violated a plaintiffs’ rights to free speech as applied and remanded for the district court to enter a preliminary injunction. A district court brought the long-running competition over preparing tax forms one step closer to resolution – or perhaps like taxes, not. And an agency necessarily waded into the thorny issues of nonacquiescence by publishing a final rule refining its regional administrators’ authority. Continue Reading
Monday Morning Regulatory Review – 8/1/16: Boiler Alphabet Review; Endangering Aircraft & Amtrak Priority, Again
Posted in Judicial Review & Remedies, Regulatory ProcessThe highlight of last week in regulatory practice was the massive court of appeals decision on boiler pollution – an anthology of more than 30 claims from nearly 50 different cases – vacating a small amount, and remanding without vacatur a good deal more, but generally finding no fault with the regulations. On the other hand, a long-term regulatory effort was set in motion by a finding that aircraft contribute to air pollution that may endanger the public health and welfare. Of much more immediate concern, an agency adopted a rule for on-time passenger train performance where the courts had invalidated other agencies’ regulations – and likely set in motion the next court case. Continue Reading
Monday Morning Regulatory Review – 7/25/16: Immigration Rule or Non-Rule Rehearing; Contraceptives Information Request & Zubik Review; Distance Learning Accreditation & Payday Loans
Posted in Judicial Review & Remedies, Regulatory ProcessInter-convention, highlights from regulatory practice might be sparse, but both litigation and regulation provide some spice. The Administration filed a petition for rehearing in the immigration policy case and a further response to the remand of a dozen decisions on the Administration’s contraceptive mandate application to religious organizations. Two rules with regulatory process implications were published last week or today – one responding to a logical outgrowth fault and the other illustrating the value and limitations of advance release. Continue Reading