A 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
A 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
Three 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
The 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
Inter-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
The United States Supreme Court (SCOTUS) declined or was unable to resolve several regulatory issues in the Term just ended, but its few substantive decisions set in motion significant changes in the regulatory process. Three cases made key points:
- Congress may not expand the scope of injury necessary to sue in federal court.
- While agencies may define the finality of their processes, finality may also be attributed to them.
- Agency process failure will result in judicial interpretation not deference to agency interpretation.
In a fourth case, SCOTUS said nothing and left the most profound regulatory practice issues for another day, another case, another Term. Continue Reading
The shortened holiday week generated few regulatory events and no real highlights, creating an opportunity to survey the major regulatory litigation as this Administration enters its final six months. This post highlights major litigation over the Administration’s priorities – particularly those stayed or preliminarily enjoined, and those at risk. The extent of this litigation risk is extraordinary – a level not seen previously – and may suggest patterns of lax regulatory practice or heightened judicial skepticism. Each challenged regulations could be an element for choices by the American people about their new government and will present choices for the new Administration. Continue Reading
Independence Day – a day to celebrate the right to choose between praising or criticizing the administrative state – or both. Several courts took exception from Administration regulatory actions in the past week, including a regulation that exceeded the agency’s authority, a regulation that likely failed to comport with a number of superior requirements, and a guidance document that, at a minimum, appears to be a final agency action and requires further review in a lower court. Expect more proposed and final rules in the near future as the Administration attempts to clear policy into regulatory form before its end. Continue Reading
With the United States Supreme Court (SCOTUS) term likely ending today and with no additional regulatory decisions expected, the eagerly awaited drone regulations leads this week’s interest in regulatory practice. In litigation, district courts finalized setting aside a major hydraulic fracturing rule, declined to temporarily enjoin a significant labor – management reporting rule, and prospectively vacated agency guidance that was inconsistent with extant agency regulations. In broad policy implementation, many agencies are adjusting civil monetary penalties in a spate of interim final rules mandated by statute. Continue Reading
The United States Supreme Court (SCOTUS) in United States v. Texas today affirmed the United States Court of Appeals for the Firth Circuit decision by an equally divided Court (4 – 4): the preliminary injunction continues to bar the Obama Administration’s deferred action and employment authorization program for aliens. The Fifth Circuit decision will have no precedential value outside the Fifth Circuit, but the preliminary injunction was nationwide in scope and, therefore, the Obama Administration may not take action to implement its employment authorization program under its deferred action decision. Continue Reading