Several weeks ago, this blog alluded to a court of appeals criticism of its district court that focused on the nature of the remedy in judicial review of final agency action under the Administrative Procedure Act (APA): that the court enjoined a rule when it should have set the rule aside. This criticism may seem… Continue Reading
Tag Archives: judicial review
Judicial Review & EO 12866 Regulatory Impact Analysis
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory ProcessA common but little understood Administrative Procedure Act (APA) issue arose from last Monday’s Regulatory Review: How does an aggrieved business acquire APA judicial review of a rulemaking under Executive Order 12886 – the executive and inter-agency review performed by the Office of Management and Budget (OMB) and its Office of Information and Regulatory Affairs… Continue Reading
Monday Morning Regulatory Review – 8/6/12
Posted in Judicial Review & Remedies, Regulatory Flexibility & Small Business, UncategorizedLast week had a little of everything. The Environmental Protection Agency (EPA) noticed a reconsideration of some issues pending judicial review and backed out regulations determined to violate the Administrative Procedure Act (APA). The United States Court of Appeals for the Ninth Circuit found that Congress left a discrete authority in the Department of Justice… Continue Reading
ACUS Requests Proposals for Administrative Record and Social Media Studies
Posted in Judicial Review & Remedies, Regulatory ProcessThe Administrative Conference of the United States (ACUS) today released two requests for proposals (RFPs) for new studies and recommendations on: Administrative Record and Judicial Review of Informal Agency Proceedings, and Social Media in Rulemaking. ACUS – as the Executive Branch Advisory Committee / Think Tank on administrative law does most of its research and… Continue Reading
Be Sued & Settle – Agencies Can’t Avoid Administrative Law
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory ProcessThe practice of suing and (immediately) settling litigation does not override the requirements of the Administrative Procedure Act (APA), the Regulatory Flexibility Act (RFA), and other statutory requirements, but it may limit the Administration’s discretion to review regulations under Executive Orders 12866 and 13653. Defenders of Wildlife v. Jackson illustrates this practice’s lack of transparency… Continue Reading
Opinion: Regulatory Analysis, Public Comments, and Policy Decisions
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory ProcessA crop of comments have sprung up recently on whether regulatory analyses in rulemaking – economic, scientific, and otherwise –support a specific point of view. At the same time, questions about whether public comments inherently bias a policy decision in a specific direction have arisen. At bottom, information is the currency of the regulatory process… Continue Reading
Arbitrary and Capricious Aging Data and Old Models – New 9th Circuit Case
Posted in Judicial Review & RemediesDoes data have a shelf life? Do models get old and replaced? Under the Administrative Procedure Act (APA), according to the U.S. Court of Appeals for the Ninth Circuit, they do – and the EPA act arbitrarily and capriciously when it failed to consider that known new model and data in reaching its decision. The… Continue Reading