Reprocessing vermont yankee

George Washington Law Review

Volumn 75, Issue 4, 2007, Pages 856-901

  Beermann, Jack M ^a   Lawson, Gary ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 34548782188     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (299)

1. Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C).
2. 5 U.S.C. § 553 (2000). Technically, the reference should be to "section 4 of the APA, which is codified at 5 U.S.C. § 553," but we follow the standard convention that refers to APA sections by their codification in the United States Code rather than by their section numbers in the original enacted bill.
3. Id. § 553(b)(3). The notice must also contain "(1) a statement of the time, place, and nature of public rule making proceedings" and "(2) reference to the legal authority under which the rule is proposed."
4. Id. § 553(b)(1)-(2). Section 553(b)(1) does not require that there actually be public rulemaking proceedings; it merely requires the agency to give notice of them if the agency chooses to provide them.
5. Id. § 553(c) (emphasis added).
6. Id.
7. Id. § 553(b)(A).
8. Id. § 553(b)(B).
9. Id. § 553(a).
10. The APA mandates use of trial-type procedures in rulemakings only when organic statutes require rules "to be made on the record after opportunity for an agency hearing." Id. § 553(c);
11. see also id. §§ 556-557 (describing in great detail the procedures required when organic statutes call for hearings "on the record"), In United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973), the Supreme Court effectively held that unless organic statutes specifically state that rules must be made "on the record," those statutes will be construed to require only the APA's informal notice-and-comment procedures.
12. See id. at 236-38. To the best of our knowledge, in the more than thirty years since Florida East Coast Railway, no organic rulemaking statute that does not contain the specific words "on the record" has ever been held to require formal rulemaking. The case may well have been wrongly decided, but that is a story for another day.
13. For background on these developments, see Thomas W. Merrill, Capture Theory and the Courts: 1967-1983, 72 CHI.-KENT L. REV. 1039, 1050-52 (1997);
14. Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 SUP. C.T. REV. 345, 348-56;
15. Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1711-60 (1975).
16. See, e.g., Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 392-93 (D.C. Cir. 1973).
17. See, e.g., O'Donnell v. Shaffer, 491 F.2d 59, 62 (D.C. Cir. 1974).
18. See, e.g., Auto. Parts & Accessories Ass'n v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968).
19. See, e.g., HBO, Inc. v. FCC, 567 F.2d 9, 51-59 (D.C. Cir. 1977).
20. See, e.g., Ass'n of Nat'l Advertisers v. FTC, 627 F.2d 1151, 1170 (D.C. Cir. 1979).
21. See, e.g., Conn. Light & Power Co. v. NRC, 673 F.2d 525, 533 (D.C. Cir. 1982).
22. See, e.g., Pickus v. U.S. Bd. of Parole, 507 F.2d 1107, 1112-13 (D.C. Cir. 1974).
23. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978).
24. See id. at 525.
25. Id.
26. Id. at 549.
27. This principle has logically been extended to informal adjudications as well. See Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 653-55 (1990).
28. See id. at 653.
29. See Paul R. Verkuil, Judicial Review of Informal Rulemaking: Waiting for Vermont Yankee II, 55 TUL. L. REV. 418, 418-19, 423-24 (1981).
30. See Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
31. See Richard J. Pierce, Jr., Waiting for Vermont Yankee II, 57 ADMIN. L. REV. 669, 669-70 (2005). The First Circuit announced this presumption of adjudicatory formality more or less contemporaneously with the Vermont Yankee decision,
32. See Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 876-77 (1st Cir. 1978), abrogated by Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006).
33. See Dominion Energy, 443 F.3d at 15-19.
34. See id. at 16-18 (discussing the continuing validity of the Seacoast presumption in light of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967 (2005)).
35. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984).
36. For treatments of the development and mechanics of the Chevron doctrine, see generally RONALD A. CASS, COLIN S. DIVER & JACK M. BEERMANN, ADMINISTRATIVE LAW: CASES AND MATERIALS 124-59 (5th ed. 2006);
37. GARY LAWSON, FEDERAL ADMINISTRATIVE LAW 402-554 (4th ed. 2007).
38. For more detailed background on the case, see Gillian E. Metzger, The Story of Vermont Yankee: A Cautionary Tale of Judicial Review and Nuclear Waste, in ADMINISTRATIVE LAW STORIES 124 (Peter L. Strauss ed., 2006).
39. The Vermont Yankee decision actually consolidated two appeals from decisions of the D.C. Circuit: Natural Resources Defense Council, Inc. v. NRC, 547 F.2d 633 (D.C. Cir. 1976), and Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir. 1976). Aeschliman primarily concerned substantive rather than procedural issues and will not be discussed here.
40. See Aeschliman, 547 F.2d at 629-30 (holding that the application of a "threshold test" to comments asking for consideration of energy conservation as an alternative to construction of nuclear reactors was arbitrary and capricious).
41. Atomic Energy Act of 1954, ch. 1073, 68 Stat. 919 (codified as amended in scattered sections of 42 U.S.C).
42. See 42 U.S.C. §§ 2011-2013 (2000).
43. See id. §§ 2131-2134, 2235. Separate licensing proceedings were required for construction and operation of nuclear reactors from 1954 until 1989, when the NRC by rule created a streamlined procedure for obtaining a "combined" construction/operation license (and also for obtaining approval of site locations and generic reactor designs).
44. See Early Site Permits; Standard Design Certifications; and Combined Licenses for Nuclear Power Reactors, 54 Fed. Reg. 15,372, 15,383, 15,392-95 (Apr. 18, 1989) (codified at 10 C.F.R. pt. 52).
45. For an overview of the streamlined procedures, see Neal H. Lewis, Interpreting the Oracle: Licensing Modifications, Economics, Safety, Politics, and the Future of Nuclear Power in the United States, 16 ALB. L.J. SCI. & TECH. 27, 39-43 (2006).
46. 42 U.S.C. § 2239(a)(1)(A). The degree of procedural formality required by these hearings has been a matter of ongoing controversy. For a recent, if inconclusive, skirmish, see Citizens Awareness Network, Inc. v. United States, 391 F.3d 338, 348 (1st Cir. 2004) ("For years, the courts of appeals have avoided the question of whether section 2239 requires reactor licensing hearings to be on the record .... We too decline to resolve this issue. Because the new rules adopted by the Commission meet the requirements of the APA it does not matter what type of hearing the NRC is required to conduct in reactor licensing cases.").
47. In 1974, the Atomic Energy Commission was abolished and its regulatory functions were transferred to the NRC. See Energy Reorganization Act of 1974, Pub. L. No. 93-438, §§ 104, 201, 88 Stat. 1233, 1237, 1242-43 (codified at 42 U.S.C. §§ 5814(a), 5841).
48. 42 U.S.C. § 2201(p).
49. See id.
50. See In re Vt. Yankee Nuclear Power Corp. (Vt. Yankee Nuclear Power Station), 4 A.E.C. 36, 36 (1967).
51. See id. at 48.
52. See In re Vt. Yankee Nuclear Power Corp. (Vt. Yankee Nuclear Power Station), 4 A.E.C. 930, 930-31 (1972).
53. Id. at 931-32. The Appeals Board also ruled that the environmental effects of decommissioning and decontaminating the plant should be considered.
54. Id. at 938-39;
55. see also In re Vt. Yankee Nuclear Power Corp. (Vt. Yankee Nuclear Power Station), 5 A.E.C. 297, 298 (1972) (upholding issuance of temporary full power operating license).
56. Environmental Effects of the Uranium Fuel Cycle, 37 Fed. Reg. 24,191, 24,191 (proposed Nov. 15, 1972).
57. See id. at 24,192.
58. See id.
59. Id. at 24, 193.
60. Id. (emphasis added).
61. See id. (indicating that copies of the survey could be examined at the Commission's Public Document Room or obtained upon request).
62. The Freedom of Information Act, 5 U.S.C. § 552 (2000), which is technically part of the APA, requires agencies to make rulemaking documents publicly available upon request, unless the requested information comes within one of nine stated exceptions. See id. § 552(a)(3)(A), (b). Because this requirement is independent of any rulemaking proceeding, it is beyond the scope of our inquiry into the requirements imposed on informal rulemaking by § 553.
63. See Environmental Effects of the Uranium Fuel Cycle, 39 Fed. Reg. 14,188, 14,191 (Apr. 22, 1974) (to be codified at 10 C.F.R. pt. 50 app. D).
64. See Natural Res. Def. Council, Inc. v. NRC, 547 F.2d 633 (D.C. Cir. 1976).
65. See id. at 646-53. The agency did a much better job of supporting its decision on its second try.
66. See Bait. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 98-100 (1983).
67. See Natural Res. Def. Council, 547 F.2d at 643.
68. Auto. Parts & Accessories Ass'n v. Boyd, 407 F.2d 330 (D.C. Cir. 1968).
69. See id. at 338 ("[I]t is appropriate for us... to caution against an overly literal reading of the statutory terms 'concise' and 'general.' These adjectives must be accommodated to the realities of judicial scrutiny, which do not contemplate that the court itself will, by a laborious examination of the record, formulate in the first instance the significant issues faced by the agency and articulate the rationale of their resolution.").
70. The need for "ventilation" of issues was one of the D.C. Circuit's most consistent themes. See Scalia, supra note 10, at 355 n.55.
71. Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970).
72. Walter Holm & Co. v. Hardin, 449 F.2d 1009, 1016 (D.C. Cir. 1971).
73. See Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 392-93 (D.C. Cir. 1973).
74. O'Donnell v. Shaffer, 491 F.2d 59, 62 (D.C. Cir. 1974) (footnotes omitted).
75. Natural Res. Def. Council, Inc. v. NRC, 547 F.2d 633, 643 (D.C. Cir 1975).
76. Id. The petitioners' claims and the government's concession in Vermont Yankee were explicitly framed in terms of "due process,"
77. id., but the line of cases that led to Vermont Yankee had gone well beyond constitutional requirements. There could, of course, be rulemakings that are so particularized in their impact that they must be considered adjudications for purposes of the Constitution and therefore require whatever procedures are necessary to conform to due process. That has been clear at least since 1908.
78. See Londoner v. City of Denver, 210 U.S. 373, 385-86 (1908) (holding that due process required notice and an opportunity to be heard before a tax assessment was specifically levied on a few people);
79. Am. Airlines, Inc. v. Civil Aeronautics Bd., 359 F.2d 624, 631 (D.C. Cir. 1966) (distinguishing the "adjudicatory procedure" required for Civil Aeronautics Board orders affecting a particular carrier from the process required for general regulations that affect all carriers).
80. But the D.C. Circuit's case law from 1968 through Vermont Yankee did not hesitate to require procedures in general rulemakings, see, e.g., Walter Holm & Co., 449 F.2d at 1016 (requiring oral proceedings for a rulemaking.involving the size of imported tomatoes), to which constitutional due process requirements plainly did not apply.
81. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445-46 (1915) (holding that due process does not grant every affected individual a right to be heard before a generally applicable order increasing all property tax assessments is given effect). "Due process," in other words, was often used-and was clearly used by all parties in Vermont Yankee-as shorthand for appropriate procedures in a generic sense rather than in its constitutional sense.
82. Natural Res. Def. Council, 547 F.2d at 653-54 (footnote omitted).
83. See id. at 653.
84. See id. at 654.
85. United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742 (1972).
86. United States v. Fla. E. Coast Ry. Co., 410 U.S. 224 (1973).
87. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524 (1978). In fact, Allegheny-Ludlum and Florida East Coast Railway said no such thing. They held only (and wrongly) that the requirement in the Esch Car Service Act of 1917 that rules respecting rates for railroad car rentals be set "after hearing" did not trigger formal rulemaking under § 553(c) of the APA.
88. See Esch Car Service Act of 1917, ch. 23, 40 Stat. 101 (current version at 49 U.S.C. § 11122 (2000));
89. Fla. E. Coast Ry. Co., 410 U.S. at 236-37;
90. Allegheny-Ludlum Steel Corp., 406 U.S. at 756-57. But for the present story, the Court's understanding of these cases in Vermont Yankee is more important than the cases themselves.
91. Vt. Yankee, 435 U.S. at 524.
92. id. at 543 (internal quotation marks omitted) (quoting FCC v. Schreiber, 381 U.S. 279, 290 (1965) (quoting FCC v. Pottsville Broad. Co., 309 U.S. 134, 143 (1940))). The "extremely compelling circumstances" mentioned by the Court referred quite clearly to cases in which "a totally unjustified departure from well-settled agency procedures of long standing might require judicial correction."
93. Id. at 542. This makes excellent sense: if an agency has a long practice of discretionarily granting procedures and then suddenly denies them to a party that is similarly situated to past parties that received those procedures, the agency should at least explain the differential treatment under the arbitrary or capricious standard of § 706(2)(A) of the APA.
94. See 5 U.S.C. § 706(2)(A) (2000) (instructing courts to overturn agency decisions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").
95. See supra notes 53-59 and accompanying text.
96. Vt. Yankee, 435 U.S. at 545.
97. Id.
98. id. at 546.
99. id.
100. Id.
101. Id at 547.
102. Id.
103. Id.
104. Id. at 547-48.
105. Id. at 548.
106. The APA has been amended in a few respects, mostly concerning sovereign immunity and the Freedom of Information Act, but its basic provisions governing agency procedures and judicial review have been essentially unchanged since their enactment. See 5 U.S.C. §§ 551-557, 701-706 (2000).
107. Vt. Yankee, 435 U.S. at 523 (quoting Wong Yang Sung v. McGrath, 339 U.S. 33, 36, 40 (1950)).
108. See id. at 524, 542, 544-45.
109. See id. at 524-25, 544-45, 548.
110. Scalia, supra note 10, at 363.
111. See Vt. Yankee, 435 U.S. at 545.
112. See 5 U.S.C. §§ 701-706 (2000).
113. Id. § 702.
114. See CASS, DIVER & BEERMANN, supra note 29, at 270-71 (explaining the pre-APA case law on standing to review agency action under the "legal right test");
115. AWSON, supra note 29, at 829-32 (explaining the original understanding of the APA's standing provisions in § 702).
116. See Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153-54 (1970) (construing § 702 to authorize standing for any complainant "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question").
117. 5 U.S.C. § 706(2)(A).
118. See LAWSON, supra note 29, at 558-59. Indeed, just a few years before enactment of the APA, the Supreme Court expressly linked the phrase "arbitrary and capricious" to the minimally intrusive standard of review for economic legislation under substantive due process.
119. See Wickard v. Filburn, 317 U.S. 111, 129-30 (1942) ("An Act of Congress is not to be refused application by the courts as arbitrary and capricious and forbidden by the Due Process Clause merely because it is deemed in a particular case to work an inequitable result.").
120. See infra notes 146-47 and accompanying text.
121. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 549 (1978) (emphasis added).
122. See id. Indeed, the lack of attention to substantive standards of review was precisely Professor Verkuil's complaint about the Vermont Yankee decision in 1981.
123. See Verkuil, supra note 24, at 419.
124. See Vt. Yankee, 435 U.S. at 524-25, 543-48.
125. Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990).
126. id. at 654.
127. See Vt. Yankee, 435 U.S. at 541-42.
128. See 5 U.S.C. § 553(b)-(c) (2000).
129. See Cabais v. Egger, 690 F.2d 234, 237 (D.C. Cir. 1982) (abandoning "substantial impact" test). Many courts, however, continue to apply APA notice-and-comment requirements to interpretative rules and statements of policy that have a substantial impact on the behavior of the agencies themselves-that is, to rules that the agency effectively treats as binding law even if it does not describe them as such.
130. See, e.g., Prof'Is & Patients for Customized Care v. Shalala, 56 F.3d 592, 596-601 (5th Cir. 1995) (holding that an FDA policy statement addressing drug compounding was not a substantive rule because it did not create a binding norm or limit agency discretion);
131. U.S. Tel. Ass'n v. FCC, 28 F.3d 1232, 1234-35 (D.C. Cir. 1994) (holding that a schedule of fines attached to a short policy statement was a substantive rule because it was intended to limit agency discretion, especially in light of its application in over 300 cases). The distinction between the two tests is substantial. The impact on a party is judged by how actual (or reasonable) regulated parties respond (or would reasonably respond) to agency action; the impact on the agency is judged by how the agency actually behaves.
132. See Vt. Yankee, 435 U.S. at 546-47.
133. See id.
134. See id.
135. Id.
136. See id. at 547-48.
137. See Jack M. Beermann, Congressional Administration, 43 SAN DIEOO L. REV. 61, 155 (2006).
138. See id.
139. See id.
140. See Natural Res. Def. Council, Inc. v. NRC, 547 F.2d 633, 646-53 (D.C. Cir. 1976).
141. in See Metzger, supra note 30, at 151 (explaining that appellate reversals of fact-bound "agency licensing proceedings" are rarely reviewed).
142. See id. at 152.
143. See supra note 62 and accompanying text.
144. See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 535 n.14 (1978).
145. Id. at 537 n.14;
146. see also id. at 543, 548.
147. See Pierce, supra note 26;
148. Verkuil, supra note 24. 117 5 U.S.C. §§ 553(c), 554(a), 556-57 (2000).
149. United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 236-38 (1973);
150. United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 757 (1972).
151. To be sure, the Court expressly stated that "the actual words 'on the record' and 'after... hearing' used in § 553 were not words of art, and that other statutory language having the same meaning could trigger the provisions of §§ 556 and 557 in rulemaking proceedings." Fla. E. Coast Ry. Co., 410 U.S. at 238. Nonetheless, because the case for formal rulemaking in Florida East Coast Railway was as strong a case as there will ever be without the words "on the record" in the organic statute, lower courts have treated Florida East Coast Railway essentially as a categorical rule that "hearing" language lacking a specification that the hearing be "on the record" will never trigger formal APA rulemaking.
152. See, e.g., Mobil Oil Corp. v. Fed. Power Comm'n, 483 F.2d 1238, 1250 (D.C. Cir. 1973) (stating that Florida East Coast Railway "virtually established ['on the record' language] as a touchstone test of when Section 556 and Section 557 procedures are required"). We are unaware of any case since 1973 where a court has held that a statute that does not contain the words "on the record" nevertheless triggers formal rulemaking.
153. Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir. 1978), abrogated by Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006).
154. Seacoast, 572 F.2d at 876-77 (emphasis added).
155. See Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1444 n.12 (D.C. Cir. 1984);
156. Marathon Oil Co. v. EPA, 564 F.2d 1253, 1261-62 (9th Cir. 1977).
157. See City of W. Chicago v. NRC, 701 F.2d 632, 641-44 (7th Cir. 1983) ("[I]n the absence of the[ ] magic words ['on the record'], Congress must clearly indicate its intent to trigger the formal, on-the-record hearing provisions of the APA.");
158. U.S. Lines v. Fed. Mar. Comm'n, 584 F.2d 519, 536 (D.C. Cir. 1978) (finding the language "after notice and hearing," without more, did not trigger the formal hearing requirements of the APA in the absence of evidence in the statutory language or legislative history indicating a contrary intent).
159. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984);
160. see Chem. Waste Mgmt., Inc. v. EPA, 873 F.2d 1477,1482 (D.C. Cir. 1989).
161. The decision in Chemical Waste Management resolved an intracircuit disagreement over whether all references to "hearings" in adjudication statutes were to formal procedures. Compare Union of Concerned Scientists, 735 F.2d at 1444 n.12, with U.S. Lines, 584 F.2d at 536-37.
162. The court concluded that it is for the agency to resolve in the first instance, subject to review under Chevron. See Chem. Waste Mgmt., 873 F.2d at 1482.
163. See Pierce, supra note 26, at 670, 673.
164. id. at 677.
165. See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 547 (1978).
166. See id. at 547-48.
167. See Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 876-77 (1st Cir. 1978),
168. abrogated by Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006).
169. See Pierce, supra note 26, at 673.
170. See Vt. Yankee, 435 U.S. at 548-49.
171. See Pierce, supra note 26, at 677.
172. Vt. Yankee, 435 U.S. at 547.
173. See id. at 548.
174. See Pierce, supra note 26, at 677.
175. Id. at 681.
176. See id. at 681-82 ("After Chevron, a court can reject an agency's construction of an ambiguous term like 'hearing' only if it concludes that the agency's construction is unreasonable.").
177. See id. at 683 (citing Chem. Waste Mgmt., Inc. v. EPA, 873 F.2d 1477, 1480-82 (D.C. Cir. 1989)).
178. See id. at 681.
179. See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524 (1978).
180. See id. at 549.
181. Chevron applies only to statutes that an agency "administers." See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). Agencies do not administer, in this specialized sense, every statute that they apply.
182. See LAWSON, supra note 29, at 453-54. If the hearing provisions in organic statutes are the kinds of statutes that agencies "administer" under Chevron, then Professor Pierce and the D.C. Circuit are correct: courts should defer to reasonable agency views about whether those statutes do or do not trigger the formal adjudicatory procedures of the APA. If agencies do not administer hearing requirements-as they do not administer, for example, judicial review provisions-then Chevron would seemingly not apply. But even that resolution is too simple. Professor Pierce is addressing how ambiguous hearing requirements in organic statutes interact with the APA. No agency administers the APA for Chevron purposes. Does that mean that no agency administers its organic statute's hearing requirements when the question is how those requirements interact with the APA? Although we take no firm position on whether agencies can be said to "administer" these provisions for the purposes of Chevron deference, the better view to us is that agencies administer the hearing provisions in their organic statutes insofar as they specify which provisions of the APA (and other generally applicable statutes) apply, but agencies do not administer the adjudication provisions of the APA (and other generally applicable statutes). Accordingly, an agency decision interpreting what is actually required by the APA (and other generally applicable statutes) would not receive Chevron deference, but an agency decision that interprets its organic statute to require either informal or formal APA procedures would receive Chevron deference. We recognize that this line may sometimes be difficult to draw.
183. Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12, 16-18 (1st Cir. 2006).
184. Id. at 17 (citing Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005)).
185. In fact, without Chevron, perhaps Professor Pierce would have gotten a "Florida East Coast Railway II," applying the logic of that case, which reads "hearing" in rulemaking statutes to require only informal procedures, to adjudication statutes. See United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 236-38 (1973);
186. see also supra note 118 and accompanying text.
187. 5 U.S.C. § 706(2)(A) (2000).
188. Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970);
189. see also Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) ("Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.").
190. See, e.g., Frank B. Cross, Shattering the Fragile Case for Judicial Review of Rulemaking, 85 VA. L. REV. 1243 (1999);
191. Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 TEX. L. REV. 525 (1997).
192. For a defense of hard-look judicial review, see Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking, 75 TEX. L. REV. 483 (1997);
193. Mark Seidenfeld, Hard Look Review in a World of Techno-Bureaucratic Decisionmaking: A Reply to Professor McGarity, 75 TEX. L. REV. 559 (1997).
194. For a suggestion that the debate may be about less than meets the eye, see William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?, 94 NW. U. L. REV. 393 (2000).
195. Verkuil, supra note 24, at 419.
196. See id. at 424.
197. See id. at 418 ("No matter how many times one reads the case, the Court's discussion of the appropriate standards for judicial review of rulemaking remains inadequate. The conclusion is inescapable that Vermont Yankee can live up to its reputation as a watershed decision only if it is followed by a second decision that resolves the complicated issue of the appropriate scope of review of informal rulemaking.").
198. See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 547 (1978) ("[T]he adequacy of the 'record' in this type of proceeding is not correlated directly to the type of procedural devices employed, but rather turns on whether the agency has followed the statutory mandate of the [APA] or other relevant statutes.").
199. Id. at 654.
200. See supra text accompanying notes 96-100.
201. 5 U.S.C. § 551(14) (2000).
202. Id. § 557(d).
203. See id. § 556(e) ("The transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision in accordance with section 557 of this title . . . ."). The agency is allowed to take official notice of facts not in the public record, but only if each party has "an opportunity to show the contrary."
204. Id.
205. See id. § 553.
206. Sangamon Valley Television Corp. v. United States, 269 F.2d 221, 224 (D.C. Cir. 1959).
207. Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C. Cir. 1977).
208. See id. at 51-59.
209. Id. at 53.
210. Id. at 54.
211. Id. at 57.
212. Id. (quoting Exec. Order No. 11,920, § 4, 3 C.F.R. 121, 123 (1976) (revoked 1986)) (changes in original).
213. Id.
214. 5 U.S.C. § 557 (2000).
215. See, e.g., Iowa State Commerce Comm'n v. Office of the Fed. Inspector of the Alaska Natural Gas Transp. Sys., 730 F.2d 1566, 1576 (D.C. Cir. 1984) ("[T]his court has not interpreted Home Box Office to apply to all informal rulemaking proceedings.");
216. Sierra Club v. Costle, 657 F.2d 298, 402 (D.C. Cir. 1981) ("Later decisions of this court . . . have declined to apply Home Box Office to informal rulemaking of the general policymaking sort involved here . . . .").
217. See Sierra Club, 657 F.2d at 404-10.
218. Dist. No. 1, Pac. Coast Dist., Marine Eng'rs' Beneficial Assoc, v. Mar. Admin., 215 F.3d 37, 42-43 (D.C. Cir. 2000) (some citations omitted) (italics omitted).
219. Cary Coglianese, Richard Zeckhauser & Edward Parson, Seeking Truth for Power: Informational Strategy and Regulatory Policymaking, 89 MINN. L. REV. 277, 323 n.170 (2004).
220. See, e.g., Patrick M. Garry, The Unannounced Revolution: How the Court Has Indirectly Effected a Shift in the Separation of Powers, 57 ALA. L. REV. 689, 709 (2006) (comparing courts' authority over agencies to courts' authority over Congress);
221. Edward Rubin, It's Time to Make the Administrative Procedure Act Administrative, 89 CORNELL L. REV. 95, 119-21 (2003) (using Home Box Office as an example of how courts use adjudicatory procedures to flesh out the APA's informal rulemaking requirements).
222. See CASS, DIVER & BEERMANN, supra note 29, at 391-405;
223. JERRY L. MASHAW, RICHARD A. MERRILL & PETER M. SHANE, ADMINISTRATIVE LAW: THE AMERICAN PUBLIC LAW SYSTEM 558-76 (5th ed. 2003);
224. PETER L. STRAUSS, TODD D. RAKOFF & CYNTHIA R. FARINA, GELLHORN AND BYSE'S ADMINISTRATIVE LAW: CASES AND COMMENTS 663-72 (10th ed. 2003).
225. Compare 5 U.S.C. §§ 556-557 (2000) (formal hearing requirements), with 5 U.S.C. § 553 (informal rulemaking requirements).
226. See Home Box Office, Inc. v. FCC, 567 F.2d 9, 57 (D.C. Cir. 1977).
227. See id. at 54 (citing "agency secrecy" as an obstacle to the court's duty to review the agency's decision for "arbitrariness or inconsistency with delegated authority").
228. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 547 (1978).
229. Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915).
230. Vt. Yankee, 435 U.S. at 542 (quoting United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 242, 245 (1973) (quoting Morgan v. United States, 304 U.S. 1, 14 (1938); Bi-Metallic, 239 U.S. at 446)).
231. Agency adjudications are uncontroversially subject to procedural due process requirements. On the constitutional distinction between rulemaking and adjudication, see Florida East Coast Railway, 410 U.S. at 244-46.
232. See 5 U.S.C. § 551(4) (2000) ("'rule'. . . includes the approval or prescription for the future of rates").
233. There is no clear way to determine in the abstract precisely what constitutes "due process of law," as it depends heavily on particular facts and contexts. See Gary Lawson, Katharine Ferguson & Guillermo A. Montero, "Oh Lord, Please Don't Let Me Be Misunderstood!": Rediscovering the Mathews v. Eldridge and Penn Central Frameworks, 81 NOTRE DAME L. REV. 1, 8-23 (2005).
234. See supra note 167 and accompanying text.
235. The student editors of this article have perceptively suggested that perhaps the D.C. Circuit is indeed moving sub silentio toward a position that prohibits ex parte communications in rulemakings only when they would be constitutionally problematic. They may well be right.
236. See Home Box Office, Inc. v. FCC, 567 F.2d 9, 18-21 & nn.8-10 (D.C. Cir. 1977) (setting forth the challenged rules regulating cable and subscription television).
237. See supra text accompanying notes 102-09.
238. See Tumey v. Ohio, 273 U.S. 510, 522-23 (1927).
239. See Gibson v. Berryhill, 411 U.S. 564, 578-79 (1973).
240. 5 U.S.C. § 556(b) (2000).
241. Cinderella Career & Finishing Schs., Inc. v. FTC, 425 F.2d 583, 591 (D.C. Cir. 1970) (quotation omitted).
242. See supra notes 177-81 and accompanying text.
243. See 5 U.S.C. § 553.
244. Ass'n of Nat'l Advertisers v. FTC, 627 F.2d 1151, 1170 (D.C. Cir. 1979).
245. See 5 U.S.C. §§ 554(d), 556(b).
246. See Rubin, supra note 171, at 119 ("[T]he requirement of an impartial decision maker . . . finds [no] direct support in the text of the APA's informal rulemaking requirements.").
247. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915).
248. 5 U.S.C. § 553(c).
249. Even in National Advertisers, FTC Chairman Michael Pertschuk was held to have a sufficiently open mind to participate in a rulemaking on advertising aimed at children, despite his clear indication - in public - that he was absolutely committed to regulating the advertising of sugared cereals aimed at children. See Nat'l Advertisers, 627 F.2d at 1173 n.56,1189-92 (detailing public and private statements made by Commissioner Pertschuk regarding children's advertising). In the most revealing communication he had on the matter, he wrote to the FDA Administrator that "we do not have to prove the health consequences of sugared cereals. What we do have to prove is that there is a substantial health controversy . . ."
250. Id. at 1191. What he was saying is that he would act so long as the record would survive judicial review - regardless of whether a preponderance
251. See, e.g., 28 U.S.C. § 455 (2000).
252. See 5 U.S.C. § 556(b).
253. See Tumey v. Ohio, 273 U.S. 510, 523 (1927) (finding violation of due process where a mayor, serving as the judge of a liquor court, would be paid only upon conviction and not acquittal);
254. Ward v. Vill. of Monroeville, 409 U.S. 57, 58-60 (1972) (finding violation of due process where a mayor, serving as the judge of a traffic court, stood to gain in his executive capacity from the extra funds made available to the village from fines he imposed in court);
255. Gibson v. Berryhill, 411 U.S. 564, 578 (1973). Gibson is the most interesting case of the three because it involved the indirect financial interests of optometrists who were using an administrative agency to stamp out one segment of their competition. The Alabama Optometric Association, a group open only to independent optometrists, had filed charges alleging that the optometrists employed by a corporation,
256. Lee Optical, were engaged in "unprofessional conduct." Gibson, 411 U.S. at 567. The Court ruled that the Alabama Board of Optometry "was constitutionally disqualified" from adjudicating the complaints against the corporate optometrists because the Board was composed solely of independent optometrists who stood to personally gain from an adverse ruling.
257. Id. at 578-79. A prejudgment allegation was also advanced, based on the fact that the Board had filed suit in Alabama state court seeking to enjoin the corporate practice of optometry.
258. Id. at 578. The Court did not reach this allegation, perhaps because a ruling that filing a lawsuit amounts to unconstitutional prejudgment would threaten the integration of functions existing in many agencies, where a single body acts as prosecutor, legislator, and adjudicator.
259. Cf. id. at 579 n.17 (noting the divergence of views in lower courts over the propriety of an agency investigating, prosecuting, and adjudicating a case).
260. 5 U.S.C. § 553(b).
261. Id.
262. For an illustration involving one of the most important transportation initiatives of the 1960s, see LAWSON, supra note 29, at 201-08.
263. 5 U.S.C. I 553(b)(3).
264. As an example, consider the then-controversial Executive Order 12,291, promulgated by the Reagan Administration in 1981, which required agencies to consider the costs and benefits of major rules. See Exec. Order No. 12, 291, § 2, 3 C.F.R. 127, 128 (1981) (revoked 1993). The Order called upon agencies to prepare a Regulatory Impact Analysis for each major rule that the agency intended to propose or issue and to submit that analysis to the Director of the Office of Management and Budget.
265. Id. The clear assumption behind the order was that all significant agency action would involve clearly formulated proposed rules. When he started teaching in 1988, Professor Lawson called an acquaintance who worked in the Office of Management and Budget performing regulatory review and asked what would happen under the Order if an agency issued a notice of proposed rulemaking that did not specify any particular rule but simply announced (as notices of proposed rulemaking routinely did before the late 1960s) the intention to study a certain issue or subject. The response was something to the effect of "well, of course no one ever does that."
266. See Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 392-93 (D.C. Cir. 1973) ("It is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of . . . data that, [to a] critical degree, is known only to the agency.").
267. Am. Med. Ass'n v. Reno, 57 F.3d 1129, 1132-33 (D.C. Cir. 1995) (some citations omitted).
268. See Chamber of Commerce of the U.S. v. SEC, 443 F.3d 890, 908 (D.C. Cir. 2006) (holding that the SEC violated § 533(c) of the APA by failing to provide an opportunity to comment on "extra-record material" that was critical to SEC cost estimates).
269. Ass'n of Battery Recyclers v. EPA, 208 F.3d 1047, 1058 (D.C. Cir. 2000).
270. See, e.g., Bldg. Indus. Ass'n of Superior Cal. v. Norton, 247 F.3d 1241, 1245-46 (D.C. Cir. 2001) (refusing to remand a rule despite its reliance on a study submitted during the comment period and therefore not subjected to public comment).
271. See Phillip M. Kannan, The Logical Outgrowth Doctrine in Rulemaking, 48 ADMIN. L. REV. 213, 214 (1996).
272. Chocolate Mfrs. Ass'n v. Block, 755 F.2d 1098, 1105 (4th Cir. 1985) (quoting Rowell v. Andrus, 631 F.2d 699, 702 n.2 (10th Cir. 1980)).
273. See 5 U.S.C. § 553(b) (2000).
274. See supra note 103 and accompanying text.
275. See, e.g., 42 U.S.C. § 7607(d)(3) (2000) (specifying rulemaking procedures under the Clean Air Act Amendments of 1977 that include detailed disclosures of information at the start of the rulemaking process).
276. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 549 (1978) (warning courts not to "stray beyond the judicial province" to impose procedures it feels are "most likely to further some vague, undefined public good").
277. 5 U.S.C. § 553 (emphasis added).
278. Id. § 553(b)(3).
279. For a good example of an agency adopting a rule that was not remotely foreshadowed by the notice of proposed rulemaking, see MCI Telecommunications Corp. v. FCC, 57 F.3d 1136, 1140-42 (D.C. Cir. 1995) (hiding the only comment that foreshadowed the final rule in a footnote in the background section of the notice of proposed rulemaking).
280. See 5 U.S.C. § 553(c).
281. Id.
282. Chocolate Mfrs. Ass'n v. Block, 755 F.2d 1098 (4th Cir. 1985).
283. See id. at 1100.
284. See id. at 1101.
285. Id.
286. See id. at 1107.
287. See id. at 1106-07.
288. Id.
289. Id. at 1107 (internal quotation marks omitted).
290. See id. at 1106-07.
291. Id. at 1105 (quoting S. Terminal Corp. v. EPA, 504 F.2d 646, 659 (1st Cir. 1974)) (emphasis added).
292. Id. at 1107.
293. See Rybacheck v. EPA, 904 F.2d 1276, 1287-88 (9th Cir. 1990).
294. See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 546 (1978) ("Congress intended that the discretion of the agencies . . . [determine] when extra procedural devices should be employed.").
295. See supra notes 105-07 and accompanying text.
296. Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 415 (1971).
297. Id. at 416.
298. See, e.g., 42 U.S.C. § 7607(d) (2000).
299. Kenneth Culp Davis, Administrative Common Law and the Vermont Yankee Opinion, 1980 UTAH L. REV. 3, 17.