D.C. Circuit: Save Us Sinners Who Fail to Object When There Is Nothing to Object To!

Posted on June 7, 2016 by Richard G. Stoll

Clean Power Plan (CPP) groupies are beside themselves over the D.C. Circuit’s surprise “straight-to-en banc” move for CPP judicial review.  The buzz is mostly over the survivability of the CPP’s interpretations of Clean Air Act (CAA) §111(d) in light of the nine judges’ dispositions.

I won’t weigh in on that issue here.  My target is another issue, one that has been lurking in the background and has bugged me greatly for the last couple of years.  Now that the issue is before an en banc panel, I am fervently hoping the Court will do what only en banc panels can do:  declare that a few recent D.C. Circuit rulings are wrong.

The issue involves garden variety adlaw:  should the CPP be vacated because EPA failed to propose or adequately foreshadow key elements of the final rule?  Parties attacking the CPP have advanced this argument, and EPA has defended on numerous grounds that its notice was adequate. 

I won’t opine here on whether EPA’s notice was adequate.  My beef is with EPA’s fall-back defense:  EPA’s argument that even if there were wholly insufficient notice of the CPP’s final provisions, the Court has no authority to vacate the CPP on those grounds. 

EPA’s theory is that since CAA §307(d)(7)(B) provides that only an issue raised in public comments can be raised on judicial review, a final rule that was never proposed cannot be challenged on judicial review because there were no public comments on that provision.  Yep, read on.

EPA argues that parties claiming a final rule was never proposed must instead file administrative petitions for review under CAA §307(d)(7)(B) and wait (usually for a few years, if ever) for EPA to act on those petitions.  In the meantime, under EPA’s position, regulatory provisions that were never proposed or foreshadowed must go into full force and effect.

This means that EPA can get away with murder, at least in the adlaw context.  Just forget the bedrock principle that an agency can impose and enforce only those rules that have first been proposed.  Under EPA’s position, the bedrock is blown away by a Richter 8.8 otherwise known as CAA §307(d)(7)(B). 

In the last two years, EPA has managed to convince D.C. Circuit panels to accede to this unfair and baseless approach.  See my 2015 ACOEL post discussing these opinions.  In a piece I published in Bloomberg BNA in 2014, I showed how the D.C. Circuit had never previously interpreted CAA §307(d)(7)(B) in this fashion , and had on many occasions vacated final rule provisions that had never been proposed. 

As explained in the above-cited pieces, the absurdity of EPA’s position is that final rules will go into full force and effect against parties because they failed to object to something they could not object to.  This just can’t be right.  The en banc CPP panel should do the right thing and declare the three most recent decisions to be wrong.

[Mr. Stoll is not representing any party in the pending D.C. Circuit CPP judicial review proceedings.]