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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 3/9/15: H-2B Regulations Vacated – Again; Immigration Executive Action Litigation IV; and Aircraft Engines & Greenhouse Gases

Posted in Agency Authority, Executive - OMB Review, Judicial Process, Judicial Review & Remedies

dawn over the capitol aocLast week’s highlights in regulatory practice were few and tread familiar ground, but have much meaning. The Department of Labor (DOL) suffered another loss in the jurisdictional kerfuffle over the non-agricultural workers visa program when a district court vacated its 2008 regulations, just as it had previously done with more recent regulations, and contrary to other court holdings. The authority for the Department of Homeland Security (DHS) executive actions favoring undocumented immigrants, on the other hand, took only a half-step forward despite pressure from Department of Justice (DOJ) for the court to stay its preliminary injunction. If the immigration labyrinth does not suit, the Office of Management and Budget (OMB) began one of the more complicated executive and interagency reviews of Environmental Protection Agency (EPA) proposals to regulate aircraft emissions.

H-2B Regulations Vacated – Again: The United States District Court for the Northern District of Florida, in Perez v. Perez, again vacated DOL regulations, this time a version adopted in 2008, for the H-2B non-agricultural workers visa program because DOL possesses no authority under the Immigration and Nationality Act (INA) to promulgate legislative regulations. DOL subsequently announced that “DOL can no longer accept or process requests for prevailing wage determinations or applications for labor certification in the H-2B program. DOL is considering its options in light of the court‘s decision.”

This decision follows an earlier order by the same district court in Bayou Lawn & Landscape Services v. Perez, vacating DOL’s 2012 H-2B regulations. DOL has appealed Bayou to the United States Court of Appeals for the Eleventh Circuit (Docket. No. 15-10623EE), the court that previously affirmed the district court’s preliminary injunction. The Eleventh Circuit served its standard briefing schedule on the parties, and the DOJ’s brief is due March 24, 2015. DOJ has not sought a stay of the vacature orders in Bayou and Perez.

Bayou and now Perez conflict with the Third Circuit decision upholding DOL’s authority to promulgate H-2B regulations in Louisiana Forestry Association v. Secretary United States DOL. If the Eleventh Circuit affirms the final decisions in Bayou, and / or Perez, an discrete and important intercircuit conflict may someday come before the United States Supreme Court (SCOTUS).

► DOL and DHS attempted to resolve this problem previously, but the half-a-loaf regulation does not seem to have taken hold. The simplest legal solution is a politically painful one of DHS promulgating regulations and administering them (although that raises great logistical issues – such as appropriations which have their own complicated history). DOJ’s appeal in Bayou is not surprising – the proto-intercircuit conflict requires further percolation.

Immigration Executive Action Litigation IV: Whether the DHS memorandum Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents is a legislative rule requiring notice and comment rulemaking under the Administrative Procedure Act (APA) took a half step forward last week. Texas and other plaintiffs responded to the Administration’s motion for a stay of the preliminary injunction in Texas v. United States by the district court in the Southern District of Texas with no surprising arguments. DOJ continued to press for an expedited ruling with another version of its previous peril: “Absent a ruling by close of business on Monday, March 9, 2015, Defendants may seek relief from the Court of Appeals in order to protect their interests.” Whether the district court acts, or DOJ seeks higher authority, is likely the subject of next week’s edition.

► If DOJ’s warning that it may go over the district court’s head if the court does not meet DOJ’s timeline seems familiar, it is because DOJ, some have said, is crying wolf. The Administration also apparently treats the authority issues in Perez and Bayou as different from the issues in Texas v. United States. Both deal with programmatic authority, but DOJ gives them different priorities.

Aircraft Engines & Greenhouse Gases: OMB began review of Environmental Protection Agency (EPA)’s Proposed Greenhouse Gas Endangerment and Cause or Contribute Findings Under CAA Section 231 for Aircraft and ANPRM on the International Process for Reducing Aircraft GHGs and Future Standards on March 2, 2015. This long anticipated set of proposals respond to an old petition for rulemaking (2007) seeking an endangerment finding for aircraft greenhouse gases (GHGs) and to regulate these emissions under the Clean Air Act (CAA). EPA’s task here is not merely making the endangerment finding, and, therefore, a proposed rule – EPA must also attempt (the Advance Notice of Proposed Rulemaking (ANPRM)) to coordinate its own work with that of the International Civil Aviation Organization (ICAO)’s efforts to reduce greenhouse gas emissions in far bigger international skies.

► The interplay of domestic and international requirements presents a complicated regulatory picture by itself, but EPA and OMB must factor in also the regulatory responsibilities of the Department of Transportation (DOT)’s Federal Aviation Administration (FAA), which works routinely with ICAO. At the same time, DHS authorizes the entry of aircraft into the United States. EPA already regulates in this arena and the regulatory fabric has only become more complicated. This is the type of interagency interplay that can make life interesting or a headache.