The transformation of modern administrative law: Changing administrations and environmental guidance documents

Ecology Law Quarterly

Volumn 35, Issue 4, 2008, Pages 657-720

  Kalen, Sam ^a  

^a PERM STATE UNIVERSITY   (Russian Federation)

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EID: 64749115674     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (442)

1. Louis L. Jaffe, The Effective Limits of the Administrative Process : A Reevaluation, 67 Harv. L. Rev. 1105, 1135(1954).
2. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 1019 (2005) (Scalia, J., dissenting).
3. The media, for instance, has emphasized the efforts by the Office of the Vice President to influence the policies of the administrative agencies, particularly on energy and environmental matters. See generally CHARLIE SAVAGE, TAKEOVER: THE RETURN OF THE IMPERIAL PRESIDENCY AND THE SUBVERSION OF AMERICAN DEMOCRACY (2007). For example, Henry Waxman, Chairman of the House Oversight and Government Reform Committee, reported that the White House overruled the Environmental Protection Agency's recommendation for a secondary air quality standard for ozone under the Clean Air Act. See Andrew Childers, Waxman Memorandum Finds White House Overruled EPA's Secondary Ozone Standard, 39 BNA ENV'T Rep. 21, 990 (2008).
4. Other stories discuss how the Administration influenced testimony and policies regarding global climate change matters. See, e.g., Juliet Eilperm & R. Jeffrey Smith, EPA Won't Act on Emissions This Year; Instead of New Rules, More Comment Sought, WASH. POST, July 11, 2008, at A-l (discussing White House involvement in air matters); Leora Falk, Former EPA Official Says Cheney Staff Asked for Parts of Senate Testimony to Be Deleted, 39 BNA ENV'T Rep. 28, 1381 (2008); Climate Change: Former EPA Official Says Chrney Staff Asked for Parts of Senate Testimony to be Deleted, 131 BNA DAILY ENVT. A-12, July 9, 2008. The scandal surrounding a high ranking former Department of the Interior official is but one of the more recent illustrations of how policymakers might overstep their role in the administrative process. See Office of Inspector General, Department of the Interior, Investigative Report of the Endangered Species Act and Conflict between Science and Policy Redacted, Dec. 10, 2008, available at http://wyden. senate.gov/newsroom/interior-ig-report.pdf.
5. COMMITTEE ON GOVERNMENT REFORM, NON-BINDING LEGAL EFFECT OF AGENCY GUIDANCE DOCUMENTS, REPORT BY THE COMMITTEE ON GOVERNMENT REFORM, H.R. Rep. No. 106-1009(2000).
6. In 2005, OMB issued a Proposed Bulletin for Good Guidance Practices, 70 Fed. REG. 71,866 (Nov. 30, 2005). OMB finalized the Bulletin in January 2007, Final Bulletin for Agency Good Guidance Practices, 72 Fed. REG. 3432 (Jan. 25, 2007), around the same time President Bush issued Executive Order No. 13422, 72 Fed. REG. 2763 (Jan. 23, 2007) (providing for review by OMB's Office of Information and Regulatory Affairs of "significant guidance documents"). The New York Times in January 2007 portrayed this effort as an attempt by the White House to increase its control over executive branch agencies. Robert Pear, Bush Directive Increases Sway on Regulation, N.Y. Times, Jan. 30, 2007, at A-l, available at http://www.nytimes.com/2007/01/30/washington/30rules.html? pagewanted=all#.
7. David W. Kendall, Some Observations About the Administrative Process, 11 ADMIN. L. BULL. 62,68(1959).
8. See generally Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 YALE L.J. 1256 (2006) (chronicling the various ways that early Federalists delegated decision-making power to bodies created by Congress). In his classic study on the history of federal regulation, Robert Rabin focused first on the populist era of the late nineteenth century and then traced the conceptual approach to regulation thereafter.
9. Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. REV. 1189 (1986). The New Deal era, he posits, marked a "watershed in the development of the federal regulatory system." Id. at 1192.
10. See generally Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421 (1987) (explaining the shift from the common law approach toward rights to entitlements concept).
11. James M. Landis, The Administrative Process-The Third Decade, 13 ADMIN. L. REV. 17, 19 (1960) [hereinafter Administrative Process]. In a 1940 lecture, Landis bemoaned what he perceived was a weak administrative law bar. James M. Landis, Crucial Issues in Administrative Law: The Walter-Logan Bill, 53 Harv. L. REV. 1077, 1078-80 (1940). He further noted that Special Committee on Administrative Law of the American Bar Association had been created just seven years earlier. Id. at 1082 n.9. And, the seminal report that ultimately set the stage for the APA occurred in 1941. REPORT OF THE ATTORNEY GENERAL'S cOMMITTEE ON ADMINISTRATIVE PROCEDURE, ADMINISTRATIVE PROCEDURE IN gOVERNMENT AGENCIES, S. Doc. No. 8, 77th Cong., 1st Sess. (1941) (on file with author).
12. See Landis, Administrative Process, supra note 9, at 20. See generally George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 NW. U. L. REV. 1557 (1996);
13. Paul R. Verkuil, The Emerging Concept of Administrative Procedure, 78 COLUM. L. REV. 258(1978).
14. See Landis, Administrative Process, supra note 10, at 20-26. Many observers at that time feared that administrative law was in too much disarray. See TASK FORCE ON LEGAL SERVICES AND PROCEDURE, COMMISSION ON ORGANIZATION OF THE EXECUTIVE bRANCH OF THE GOVERNMENT, REPORT ON lEGAL SERVICES AND PROCEDURE 9-10 (1955); COMMISSION ON ORGANIZATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, LEGAL SERVICES AND PROCEDURE: A REPORT TO THE CONGRESS 47 (1955). See generally Ralph F. Fuchs, The Hoover Commission and Task Force Reports on Legal Services and Procedure, 31 Ind. L. J. 1 (1955).
15. Judge Friendly opined, "[t]he administrative agencies are not wanting for attention, but the attention they are getting is not the attention they want." Henry J. Friendly, A Look at the Federal Administrative Agencies, 60 COLUM. L. REV. 429, 431 (1960) [hereinafter Friendly, A Look]. In his book on administrative agencies, Judge Friendly argued that agencies needed better definition of standards to avoid inconsistency and unfairness in otherwise ad hoc decision-making. HENRY J. FRIENDLY, THE FEDERAL ADMINISTRATIVE AGENCIES: THE NEED FOR BETTER DEFINITION OF STANDARDS (1962) [hereinafter Friendly, Administrative Agencies].
16. For an interesting review of Judge Friendly's approach toward decision making, see Daniel Breen, Avoiding "Wild Blue Yonders": The Prudentialism of Henry J. Friendly and John Roberts, 52 S.D. L. REV. 73 (2007). For a discussion of the creation of the Administrative Conference of the United States, seeee generally Note, The Progress of Federal Agency Reorganization Under the Kennedy Administration, 48 VA. L. REV. 300, 361-67 (1962).
17. See Ben C. Fisher, Rule Making Activities in Federal Administrative Agencies, 17 ADMIN. L. REV. 252 (1965); Ruth Smalley, Report of the Committee on Agency Rule Making, 12 ADMIN. L. BULL. 180, 181 (1960);
18. see also Friendly, A Look, supra note 11, at 437;
19. Louis J. Hector, The New Critique of the Regulatory Agency, 12 ADMIN. L. BULL. 12, 16 (1959);
20. Carl McFarland, Landis' Report: The Voice of One Crying in the Wilderness, 47 VA. L. REV. 373, 433-36 (1961) (describing Landis' Report critique of "common law" approach to policy-setting, as opposed to rulemaking).
21. See also Merton C. Bernstein, The NLRB 's Adjudication-Rule Making Dilemma Under the Administrative Procedure Act, 79 YALE L. J. 571 (1970). The Administrative Conference of the United States responded to the 1971 Advisory Council on Executive Organization ("Ash Council") by, inter alia, similarly encouraging greater reliance on rulemaking proceedings rather than adjudicatory proceedings for establishing policy.
22. Administrative Conference of the United States, Views of the Administrative Conference of the United States on the "Report on Selected Independent Regulatory Agencies" of the President's Advisory Council on Executive Organization, 57 VA. L. REV. 927, 928, 930 (1971). The 1971 Ash Council recommended establishing a super-Administrative Court, which would review select agency decisions.
23. See generally Nathaniel L. Nathanson, The Administrative Court Proposal, 57 VA. L. REV. 996 (1971). This followed earlier proposals by the American Bar Association and the Hoover Commission. Id. at 1003.
24. SEC v. Chenery Corp., (Chenery 11), 332 U.S. 194 (1947). See generally Russell L. Weaver & Linda D. Jellum, Chenery II and the Development of Federal Administrative Law, 58 ADMIN. L. REV. 815, 816 (2006) (Chenery II "qualifies as our most underrated administrative law decision."). In Securities and Exchange Commission v. Chenery Corp. (Chenery I), 318 U.S. 80 (1943), the Court did not address the issue squarely, but it signaled the approach it would take in Chenery II in American Power & Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 106 (1946) ("Nor is there any constitutional requirement that the legislative standards be translated by the Commission into formal and detailed rules of thumb prior to their application to a particular case. If that agency wishes to proceed by the more flexible case-by-case method, the Constitution offers no obstacle. All that can be required is that the Commission's actions conform to the statutory language and policy.").
25. The case involved the Securities and Exchange Commission (SEC) review of a reorganization plan (and treatment of stock by management) for a public utility holding, pursuant to the Public Utility Holding Company Act of 1935. In Chenery I, 318 U.S. 80 (1943), the Court, in a 5-3 decision (Douglas, J., not participating), remanded the SEC's decision. Writing for the majority, Justice Frankfurter held that the SEC incorrectly applied judicial principles to the treatment of the stock in the reorganization. He further observed: [T]he difficulty remains that the considerations urged here in support of the Commission's order were not those upon which its action was based. The Commission did not rely upon "its special administrative competence"; it formulated no judgment upon the requirements of the "public interest or the interest of investors or consumers" in the situation before it ⋯. Had the Commission, acting upon its experience and peculiar competence, promulgated a general rule of which its order here was a particular application, the problem for our consideration would be very different. Whether and to what extent directors or officers should be prohibited from buying or selling stock of the corporation during its reorganization, presents problems of policy for the judgment of Congress or the body to which it has delegated power to deal with the matter. 318 U.S. at 92. The Court added that conduct could only be outlawed if the agency to which Congress delegated the authority to prescribe standards did so, such as "acting under the rule-making power delegated to it." Id. at 92. See generally Kevin M. Stack, The Constitutional Foundations of Chenery, 116 YALE L.J. 952 (2007) (describing the role of Chenery and the principle that a court may review only the agency's asserted reasons for its decision as a condition for affording Chevron deference). In Chenery II, although the Court indicated that the agency could act in an ad hoc manner, it nonetheless arguably cabined its language by noting that it did not mean to suggest in Chenery I that rulemaking was the only option. Chenery II, 332 U.S. at 201-02. It further noted that the SEC, unlike a court, has less reason not to act by rulemaking when formulating new standards of conduct. Id. at 202. While the majority disclaimed any rigid approach, it emphasized that "[t]he function of filing in the interstices of the Act should be performed, as much as possible, through this quasi-legislative promulgation of rules to be applied in the future." Id. Perhaps predictably, Justice Frankfurter joined Justice Jackson's dissent in Chenery II, with Justice Jackson caustically and exasperatingly writing that "[t]he difference between the first and the latest decision of the Court is thus simply the difference between holding that administrative orders must have a basis in law and a holding that absence of a legal basis is no ground on which courts may annul them." Id. at 212 (Jackson, J., dissenting). Whether in a particular case or in a rulemaking, Justice Jackson indicated the basis in law would come in a rulemaking. For a modern day commentary, see generally William D. Araiza, Limits on Agency Discretion to Choose Between Rulemaking and Adjudication: Reconsidering Patel v. INS and Ford Motor Co. v. FTC, 58 ADMIN. L. REV. 899 (2006). Cf. Aeolus Systems, LLC v. United States, 79 Fed. Cl. 1 (2007) (rejecting argument that agency had to proceed through rulemaking in lieu adjudication); see also Muniz v. Sabol, 517 F.3d 29 (1st Cir. 2008) (permitting agency to address generic issues through rulemaking in lieu of individualized adjudication).
26. Warren E. Baker, Policy by Rule or Ad Hoc Approach-Which Should it Be?, 22 Law & CONTEMP. PROBS. 658, 671 (1957).
27. Peter L. Strauss, Rules, Adjudications, and Other Sources of Law in An Executive Department: Reflections on the Interior Department's Administration of the Mining Law, 74 COLUM. L. REV. 1231 (1974). See also David L. Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 HARV. L. REV. 921 (1965).
28. See, e.g., Arthur Earl Bonfield, Some Tentative Thoughts on Public Participation in the Making of Interpretive Rules and General Statements of Policy Under the A.P.A., 23 ADMIN. L. REV. 101 (1971); McFarland, supra note 12, at 435-36.
29. J. Skelly Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 CORNELL L. REV. 375, 375 (1974).
30. See also William F. Pedersen, Jr., Formal Records and Informal Rulemaking, 85 YALE L.J. 38, 38-39 (1975) ("The increased use of rulemaking has changed the whole structure of administrative law⋯ .").
31. Not surprisingly, the increased reliance on rulemaking prompted a heightened focus on the rulemaking process itself and the standard of judicial review. Id. See generally David P. Currie & Frank I. Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 COLUM. L. REV. 1 (1975). The Court decided Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) during this period, addressing the judicial role in reviewing agency actions. For an insightful article written a decade earlier about the role of judicial review and administrative discretion, see Ralph F. Fuchs, Fairness and Effectiveness in Administrative Agency Organization and Procedures, 36 IND. L.J. 1 (1960).
32. See generally 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);
33. R. Shep Melnick, The Political Roots of the Judicial Dilemma, 49 ADMIN. L. REV. 585 (1997);
34. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385 (1992);
35. Richard J. Pierce, Jr., Judicial Review of Agency Actions in a Period of Diminishing Agency Resources, 49 ADMIN. L. REV. 61(1997);
36. Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59 (1995) (hereinafter Pierce, Deossify). But cf. Thomas O. Sargentich, The Critique of Active Judicial Review of Administrative Agencies: A Reevaluation, 49 ADMIN. L. REV. 599 (1997) (responding to Pierce's proposals for reshaping administrative law).
37. 5 U.S.C. § 553 (2006).
38. For example, the Clean Air Act contains its own rulemaking provisions. See 42 U.S.C. § 7607(d) (2006).
39. 5 U.S.C. § 553. "This requirement [to provide a statement of basis and purpose] is not meant to be particularly onerous. It is enough if the agency's statement identifies the major policy issues raised in the rulemaking and coherently explains why the agency resolved the issues as it did." Nat'l Mining Ass'n v. Mine Safety & Health Admin., 512 F.3d 696, 700 (D.C. Cir. 2008) (citations omitted). See also Nat'l Nutritional Foods Ass'n v. Weinberger, 512 F.2d 688, 701 (2d Cir. 1975) (statement must only be sufficiently detailed to permit judicial review).
40. See 5 U.S.C. §§ 601 (2006); Allied Local & Reg'l Mfrs. Caucus v. EPA, 215 F.3d 61, 78-79 (D.C. Cir. 2000). Thomas O. Sargentich, The Small Business Regulatory Enforcement Fairness Act, 49 ADMIN. L. REV. 123 (1997). The Regulatory Flexibility Act generally requires the preparation of an initial and then final regulatory flexibility analysis describing the impact of the rule on small entities (specifically defined), except when the agency head certifies that the rule will not have a significant economic effect on a substantial number of small entities. See, e.g., Aeronautical Repair Station Ass'n, Inc. v. FAA, 494 F.3d 161, 174-178 (D.C. Cir. 2007) (discussing challenges under the Regulatory Flexibility Act).
41. Congressional Review Act, Pub. L. 104-121, 101 Stat. 847, 868-74, codified at 5 U.S.C. S§ 801-08, § 8-2(a). See generally Daniel Cohen & Peter L. Strauss, Congressional Review of Agency Regulations, 49 ADMIN. L. REV. 95 (1997).
42. 2 U.S.C. § 1501 (2006), requiring that, prior to issuing either a proposed or final rule that may result in the aggregate expenditure of $100 million or more (in any one year) to State, local, and tribal governments, or the private sector, executive branch agencies produce a written analysis of the estimated costs of compliance. See generally Daniel E. Troy, The Unfunded Mandates Reform Act of 1995, 49 ADMIN. L. REV. 139(1997).
43. Pub. L. 104-13, 109 Stat. 163 (codified as amended in scattered sections of 44 U.S.C). See generally Jeffrey S. Lubbers, Paperwork Redux: The (Stronger) Paperwork Reduction Act of 1995, 49 ADMIN. L. REV. 111 (1997).
44. 44 U.S.C. § 3516 (2006). See generally James W. Conrad, Jr., The Information Quality Act- Antiregulatory Costs of Mythic Proportions?, 12 KAN. J. L. & PUB. POL'Y 521 (2003).
45. 5 U.S.C. app. 2 § 2-16 (2006). Congress softened the Federal Advisory Committee Act (FACA) in 1995, by exempting from its sphere certain intergovernmental consultations. See Unfunded Mandates Reform Act of 1995, 2 U.S.C. §§ 1501-1571 (2006). See generally Thomas C. Beierle and Rebecca J. Long, Chilling Collaboration: The Federal Advisory Committee Act and Stakeholder Involvement in Environmental Decisionmaking, 29 ENVTL. L. REP. 10399 (1999);
46. Steven P. Croley & William F. Funk, The Federal Advisory Committee Act and Good Government, 14 YALE J. ON REG. 451 (1997). Although the Court avoided the underlying merits of the case, Cheney v. United States Dist. Court for the Dist. of Columbia, 542 U.S. 367 (2004) is likely the most prominent FACA lawsuit, where the plaintiffs alleged that the Vice President's National Energy Policy Development Group violated the law.
47. See 42 U.S.C. § 300g-l(b)(3) (2006); The Food Quality Protection Act of 1996, also requires specific requirements, mandating that EPA apply a variety of factors in determining whether the amounts of pesticide residues allowed in or on food are safe (e.g., tolerances). Pub. L. No. 107-140, 110 Stat. 1489 (codified in scattered sections of Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136-136y, and the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301-399a). See generally UNITED STATES GENERAL ACCOUNTING OFFICE, CHILDREN AND PESTICIDES: NEW APPROACH TO CONSIDERING RISK IS PARTLY IN PLACE (2000).
48. See also Charles Tiefer, Congressional Oversight of the Clinton Administration and Congressional Procedure, 50 ADMIN. L. REV. 199 (1998);
49. Thomas O. McGarity, Politics by Other Means: Law, Science, and Policy in EPA 's Implementation of the Food Quality Protection Act, 53 ADMIN. L. REV. 103 (2001).
50. The OMB is institutionally skeptical of regulation, or at least environmental regulation. For critical analysis discussing OMB's involvement with environmental regulation, see William D. Araiza, Judicial and Legislative Checks on Ex Parte OMB Influence Over Rulemaking, 54 ADMIN. L. REV. 611 (2000);
51. Lisa Heinzerling, Statutory Interpretation in the Era of OIRA, 33 FORDHAM URB. L.J. 1097 (2006);
52. Richard J. Lazarus, The Tragedy of Distrust in the Implementation of Federal Environmental Law, 54 LAW & CONTEMP. PROBS. 311, 330-34 (1991);
53. Sidney A. Shapiro, OMB and the Politicization of Risk Assessment, 37 ENVTL. L. 1083 (2007).
54. See also Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260 (2006) (arguing that OMB-centralized oversight may be appropriate for harmonization but not for controlling allegedly overzealous agency behavior).
55. See, e.g., Exec. Order No. 13,186, 66 Fed. REG. 3853 (2001) (mandating consideration of impacts of agency action on migratory birds); Exec. Order No. 13,132, 64 Fed. REG. 43,255 (1999) (mandating consideration of federalism implications of agency actions); Exec. Order No. 12,898, 59 Fed. REG. 7629 (1994) (mandating consideration of environmental justice impacts of agency actions). The Government Accountability Office, for instance, criticized EPA's air quality rulemakings for not addressing more effectively environmental justice concerns. U.S. GOV'T ACCOUNTABILITY OFFICE, ENVIRONMENTAL JUSTICE: EPA SHOULD DEVOTE MORE ATTENTION TO ENVIRONMENTAL JUSTICE WHEN DEVELOPING CLEAN AIR RULES, REP. No. GAO-05-289 (2005), available at http://www. gao.gov/new.items/d05289. pdf.
56. RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL LAW 127 (2004). Vice President Quayle's Council generated open criticism for its alleged interference with important rulemakings. See CORNELIUS M. KERWIN, RULEMAKING: HOW GOVERNMENT AGENCIES WRITE LAW AND MAKE POLICY 176-77 (CQ PRESS 2003) (1994) (discussing the Council's impact on a significant Clean Air Act rulemaking). White House review of rulemakings also intensifies during presidential transition periods, as these teams often review and delay potentially controversial rulemakings (or other actions) that may not be consistent with the philosophy of the new Administration. The day after his boss was sworn into office, the then-Assistant to the President and Chief of Staff Andrew H. Card, Jr., issued a memorandum effectively imposing a moratorium on many proposed regulations. See William M. Jack, Comment, Taking Care That Presidential Oversight of the Regulatory Process is Faithfully Executed: A Review of Rule Withdrawals and Rule Suspensions Under the Bush Administration's Card Memorandum, 54 ADMIN. L. REV. 1479 (2002). A similar moratorium has been issued for the end of the Administration in 2008. See Memorandum from Joshua B. Bolton, Chief of Staff, to the Heads of Executive Departments and Agencies, The Administrator of the Office of Information and Regulatory Affairs: Issuance of Agency Regulations at the End of the Administration, May 8, 2008 (on file with author). Immediately after President Obama's administration entered the White House, a similar directive emerged regarding pending proposed rulemakings. See Memorandum from Rahm Emanuel, Assistant to the President and Chief of Staff, to the Heads of Executive Departments and Agencies, Regulatory Review (Jan. 20, 2009) (on file with author), available at http://media.washingtonpost.com/wp-srv/ politics/documents/emanuel-regulatory-review.pdf.
57. See e.g., Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV. 47 (2006). Bressman and Vandenbergh question existing scholarship advancing the presidential control model, suggesting that the presidential control model requires reworking because actual practice suggests that the White House's involvement is more complex and less positive than advocates of the model recognize. Their article is instructive in its effort to examine actual practice (via a survey of former officials). They focus on EPA and the involvement of OMB and the Office of Information and Regulatory Affairs (OIRA), concluding that Executive Office influence often occurs at a level apart from OIRA. Indeed, such influence can occur simply by the appointment of politically aligned superiors in an agency, or through interagency task forces, and sometimes even with the involvement of other departments, including the Department of Justice or through communications with the White House's Council on Environmental Quality. General surveys (or questionnaires to former agency officials, as the authors used) will not portray a complete picture, without examining particular agency policies or "policy-laden" rulemaking efforts. For discussions of presidential control, see Colin S. Diver, Presidential Powers, 36 AM. U.L. REV. 519 (1987);
58. Robert V. Percival, Separation of Powers, the Presidency and the Environment, 21 J. LAND RESOURCES & ENVTL. L. 25 (2001);
59. Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 DUKE L.J. 963 (2001);
60. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994);
61. Mark Seidenfeld, A Big Picture Approach to Presidential Influence on Agency Policy-Making, 80 IOWA L. REV. 1 (1994);
62. Peter M Shane, Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking, 48 ARK. L. REV. 161 (1995);
63. Peter L. Strauss, Presidential Rulemaking, 72 CHI.- KENT L. REV. 965 (1997).
64. Steven D. Cook, White House Defends Intervention in EPA Decision on Ozone, 39 BNA ENVT. REP. 12, 542 (2008).
65. See 5 U.S.C. § 706 (2006).
66. See Matthew Warren, Active Judging: Judicial Philosophy and the Development of the Hard Look Doctrine in the D.C. Circuit, 90 GEO. L.J. 2599 (2002);
67. See also Richard J. Pierce, Jr., The Special Contributions of the D.C. Circuit to Administrative Law, 90 GEO. L. J. 779 (2002);
68. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717(1997). The regulatory scandals at EPA and the Interior Department during the Reagan and first Bush Administrations arguably only further solidified the increased scrutiny of environmental decision making. Cf. Richard J. Lazurus, The Tragedy of Distrust in the Implementation of Federal Environmental Law, 54 LAW & CONTEMP. PROBS. 311, 363 (1991) (describing EPA's "pathological cycle of regulatory failure, crisis, and controversy"). "By early 1983 the agency [EPA] was awash in public scandal amid charges that its rulemaking and enforcement had become corrupted by a pattern of secret negotiations with industry representatives, exclusion of public-interest voices from policy deliberations, and improper influence exerted from the upper reaches of the Executive Branch. By April most of the president's appointees to leadership positions in the agency, including top administrator Anne Burford, had resigned under fire⋯." pETER c. yEAGER, THE LIMITS OF LAW: THE PUBLIC REGULATION OF PRIVATE POLLUTION 2 (1991).
69. See also George Cameron Coggins & Doris K. Nagle, "Nothing Beside Remains ": The Legal Legacy of James G. Watt's Tenure as Secretary of the Interior on Federal Land Law and Policy, 17 B.C. ENVT'L AFF. L. REV. 473 (1990).
70. Motor Vehicles Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). Of course, the development of the "hard look" doctrine occurred earlier, as chronicled by Judge Harold Leventhal, in Harold Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U. PA. L. REV. 509 (1974). In 1978, the Supreme Court limited courts' ability to fashion procedural requirements not contained within the APA. See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519 (1978). For the development of hybrid rulemaking prior to Vermont Yankee, see Paul R. Verkuil, Judicial Review of Informal Rulemaking, 60 VA. L. REV. 185 (1974);
71. Stephen F. Williams, "Hybrid Rulemaking " under the Administrative Procedure Act: A Legal and Empirical Analysis, 42 U. Chi. L. REV. 401 (1975). Cf. Citizens Awareness Network, Inc. v. United States, 391 F.3d 338, 349-350 (1st Cir. 2004) (APA requires only minimal procedural safeguards and court may not enlarge those minimum requirements). In Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006), the court explained that although it had earlier held that an opportunity for a public hearing under section 402 of the Clean Water Act permitting program meant an evidentiary hearing, that interpretation could be usurped by Chevron deference and National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967 (2005), when the agency subsequently interpreted the language not to require an evidentiary hearing. See infra notes 297-315 and accompanying text (discussing Brand X).
72. Motor Vehicles, 463 U.S. at 50. See also Macmillan Publ'g Co. v. NLRB, 194 F.3d 165, 168 (D.C. Cir. 1999) (citing SEC v. Chenery Corp., 318 U.S. 80 (1943)). In his entertaining style, Judge Friendly revisited the Chenery principle on agency justifications and concluded that it has an appropriate place in administrative law, provided that courts do not act too zealously in exercising their power of remand. Henry J. Friendly, Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders, 1969 Duke L. R. 199 (1969). See Stack, supra note 14 (discussing the importance of Chenery).
73. Various reasons exist for favoring some hefty measure of judicial scrutiny of an agency action, perhaps as an institutional check against executive agency decisions that may have been rendered with insufficient thought, analysis or support-or potentially for "political," in lieu of congressionally sanctioned, reasons. Richard Pierce, for one, suggests that courts may be exercising too much power and operate beyond their competence when they review agency decisions. See Richard J. Pierce, Jr., Judicial Review of Agency Actions in a Period of Diminishing Agency Resources, 49 ADMIN. L. REV. 61 (1997);
74. Richard J. Pierce, Jr., Chevron and Its Aftermath: Judicial Review of Agency Interpretations of Statutory Provisions, 41 VAND. L. REV. 301 (1988).
75. Others disagree. See Thomas O. Sargentich, The Critique of Active Judicial Review of Administrative Agencies: A Reevaluation, 49 ADMIN. L. REV. 599 (1997);
76. Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452 (1989);
77. Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 TEX. L. REV. 525 (1997);
78. Mark Seidenfeld, Demystifying Deossiflcation: Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking, 75 TEX. L. REV. 483 (1997);
79. Mark Seidenfeld, Hard Look Review in a World of Techno-Bureaucratic Decisionmaking: A Reply to Professor McGarity, 75 TEX. L. REV. 559 (1997);
80. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071 (1990).
81. The level of scrutiny may dictate the result of a court's review. In Defenders of Wildlife v Kempthorne, 2006 WL 2844232, *19 n.15 (D.D.C. Sept. 29, 2006), for instance, the court distinguished another decision that invalidated a set of regulations similar to those challenged in this case, by noting that the court there was "compelled to reach its conclusion ⋯ by Ninth Circuit precedent that is substantively different from the case law interpreting Chevron in this [D.C. Circuit] jurisdiction." For studies of agencies' success in surviving judicial scrutiny, See JONATHAN H. ADLER, REASON PUBLIC POLICY INSTITUTE, ENVIRONMENTAL PERFORMANCE AT THE BENCH: THE EPA'S RECORD IN FEDERAL COURT (2000);
82. William S. Jordan, III, Judges, Ideology, and Policy in the Administrative State: Lessons From a Decade of Hard Look Remands of EPA Rules, 53 ADMIN. L. REV. 45, 94 (2001) (over tested period, EPA prevailed more often than not when court reached Chevron step two analysis).
83. Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 248 (D.C. Cir. 2008) (dissenting in part).
84. 5 U.S.C. § 553(b)(3)(A) (2006). Compare James V. Hurson Assocs. v. Glickman, 229 F.3d 277, 281 (D.C. Cir. 2000) ("that an otherwise procedural rule does not become a substantive one, for notice-and-comment purposes, simply because it imposes a burden on regulated parties"), with Utility Solid Waste Activities Group v. EPA, 236 F.3d 749 (D.C. Cir. 2001) (no inherent power to correct technical mistakes in rulemaking, without going through another formal rulemaking process). See also Pub. Citizen v. Dep't of State, 276 F.3d 634 (D.C. Cir. 2002) (a cut-off date policy for requesting documents under the Freedom of Information Act a procedural rule but otherwise held unreasonable).
85. 5 U.S.C. § 553(b)(3)(B) (2006). See generally Ellen R. Jordan, The Administrative Procedure Act's "Good Cause" Exemption, 36 ADMIN. L. REV. 113 (1984);
86. Juan J. Lavilla, The Good Cause Exemption to Notice and Comment Rulemaking Requirements Under the Administrative Procedure Act, 3 ADMIN. L.J. 317 (1989). In Natural Res. Def. Council v. Abraham, 355 F.3d 179 (2d Cir. 2004), the Second Circuit rejected as "good cause" a problem regarding the effective date of a rulemaking of the agency's own making. But "good cause" may exist when conditions dictate immediate action. See, e.g., Or. Trailers Ass'n v. Gutierrez, 452 F.3d 1104, 1111 (9th Cir. 2006) (need for action prior to upcoming fishing season).
87. See generally Michael Asimow, Interim-Final Rules: Making Haste Slowly, 51 ADMIN. L. REV. 703 (1999);
88. Ronald M. Levin, More on Direct Final Rulemaking: Streamlining, Not Corner-Cutting, 51 ADMIN. L. REV. 757 (1999);
89. Ronald M. Levin, Direct Final Rulemaking, 64 GEO. WASH. L. REV. 1 (1995);
90. Lars Noah, Doubts About Direct Final Rulemaking, 51 ADMIN. L. REV. 401 (1999). Cf. 60 Fed. REG. 43,110 (Aug. 18, 1995) (Administrative Conference of the United States Recommendation 95-4, regarding procedures for noncontroversial and expedited rulemakings).
91. For example, in the long-running debate over the scope of section 404 jurisdiction under the Clean Water Act, the United States Army Corps of Engineers responded to the decision in American Mining Congress v. U.S. Army Corps of Eng'rs, 951 F. Supp. 267 (D.D.C. 1997), aff'd, 145 F.3d 1399 (D.C. Cir. 1998) (AMC I), by issuing a direct-final rule on the
92. Energy Independence and Security Act of 2007, Pub. L. No. 110-140, 121 Stat. 1492 (codified as amended in scattered sections of 42 U.S.C.).
93. "Agencies cannot function effectively unless they clarify the law through interpretative rules and channel their discretion through policy statements." Michael Asimow, Public Participation in the Adoption of Interpretive Rules and Policy Statements, 75 MICH. L. REV. 520, 529 (1977). The use of agency devices other than notice-and-comment rulemakings is far from new. For a thoughtful discussion of this practice at the Internal Revenue Service, the Immigration and Naturalization Service, the Federal Communications Commission and the Federal Trade Commission, see Id. See also Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element, 53 ADMIN. L. REV. 803, 805 (2001). The Department of the Interior has employed guidance manuals for some time; the Army Corps of Engineers began issuing Regulatory Guidance Letters (RGLs) in 1981- albeit not publishing them in the Federal Register until a decade later.
94. See Sam Kalen, Commerce to Conservation: The Call for a National Water Policy and the Evolution of Federal Jurisdiction Over Wetlands, 69 N.D. L. REV. 873, 911 (1993). EPA too has provided "guidance" since the agency's inception. See, e.g., State and Federal Administrative Orders Permitting a Delay in Compliance with State Implementation Plan Requirement, 44 Fed. REG. 8311 (Feb. 9, 1979) (guidance memoranda and other documents regarding State Implementation Plan requirements); Clean Air Act Provisions, 44 Fed. REG. 37679 (June 28, 1979) (policy memorandum on application of CAA sanctions). Early on under Title II of the CAA, for instance, EPA issued Manufacturer Guidance Letters and Advisory Circulars; absent such documents, the regulated community could not have certified their automobiles for sale due to the immediacy of the issues and the time required for a rulemaking proceeding. See, e.g., 63 Fed. REG. 8197 (Feb. 18, 1998) (guidance on municipal settlement policy); 61 Fed. REG. 55,298 (Oct. 25, 1996) (guidance on procedures for 106(b) petitions). EPA also publishes numerous technical and model documents. See, e.g., 60 Fed. REG. 62,849 (Dec. 7, 1995) (model de minimis contributor consent decree and administrative order on consent); 60 Fed. REG. 62,446 (Dec. 6, 1995) (model CERCLA past costs consent decree and administrative agreement). The Council on Environmental Quality even began its efforts under the National Environmental Policy Act by releasing "guidelines" in 1973, 38 Fed. REG. 20,550 (Aug. 1, 1973) (guidelines, although published for notice and comment), followed by additional guidance documents as the "Forty Questions." See THE NEPA LITIGATION GUIDE 303 (Karin P. Sheldon & Mark Squillace, eds.,1999).
95. It is for this reason, in part, that the Solicitor of the Department of the Interior issued "M-Opinions" on patenting of excess reserves and mill-sites under the 1872 Mining Law. Memorandum from John D. Leshy, Solicitor, U.S. Dep't of the Interior to Director, Bureau of Land Mgmt., Excess Reserves Under the Mining Law (Mar. 22, 1996), available at http://www.doi.gov/solicitor/opinions/M-36984, %20Excess%20Reserves%20Under%20the%20Mining%20Law-1996.pdf; Memorandum from John D. Leshy, Solicitor, U.S. Dep't of the Interior to Secretary, to Acting Director, Bureau of Land Mgmt., Patenting of Mining Claims and Mill Sites in Wilderness Areas (May 22, 1998), available at http://www.doi.gov/ solicitor/opinions/M-36994.pdf; Memorandum from John D. Leshy, Solicitor, U.S. Dep't of the Interior to Director, Bureau of Land Mgmt., Entitlement to a Mineral Patent Under the Mining Law of 1872 (Nov. 12, 1997), available at http://www.doi.gov/solicitor/opinions/M-36990.pdf; Memorandum from John D. Leshy, Solicitor, U.S. Dep't of the Interior to Director, Bureau of Land Mgmt., Use of Mining Claims for Purposes Ancillary to Mineral Extraction (Jan. 18, 2001), available at http://www.doi.gov/solicitor/opinions/M-37004, %20Use%20oP/o20Mining%20Claims%20for% 20Purposes%20Ancillary%20to%20Mineral%20Extraction-2001.pdf. The Solicitor reaffirmed that these "M" opinions are binding on the entire DOI. Solicitor, Department of the Interior to Assistant Secretary, Policy, Management and Budget Director, Office of Hearings and Appeals, Binding Nature of Solicitor's M-Opinions on the Office of Hearings and Appeals (Jan. 18, 2001), available at http://www.doi.gov/solicitor/opinions/M-37003, %20Binding%20Nature%20of%20Solicitor's%20M- Opinions%20on%20the%20Office%20of%20Hearings%20and%20Appeals-2001.pdf. One of these opinions, regarding the use of millsites, was subsequently overruled by a new Solicitor opinion concurred in by the Secretary, upon the change in Administration. U.S. Dep't of the Interior, Solicitor's Opinion, M-37010 (Oct. 7, 2003), available at http://www.doi.gov/solicitor/opinions/M-37010.pdf.
96. A classic example is the effort of the Corps and EPA to develop guidance on the scope of jurisdiction under the Clean Water Act, first as consequence of the Supreme Court's decision in Solid Waste Agency of N. Cook County v. U.S. Corps of Eng'rs (SWANCC), 531 U.S. 159 (2001), and then more recently due to the Court's decision in Rapanos v. United States, 547 U.S. 715 (2006). After SWANCC, the agencies developed guidance and floated an Advanced Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of "Waters of the United States," 68 Fed. REG. 1991 (Jan. 15, 2003).
97. See James Murphy, Hard to Navigate: Rapanos and the Future of Protecting Our Waters, 22 NAT. RES. & ENVT. 3, 4 (2007). Then, after the Court's decision in Rapanos, the agencies again developed and sought comments on guidance regarding the scope of jurisdiction under section 404 of the Act. See EPA and Army Corps of Engineers Guidance Regarding Clean Water Act Jurisdiction after Rapanos, 72 Fed. REG. 31,824 (June 8, 2007). And more recently the Corps issued a Regulatory Guidance Letter on Jurisdictional Determinations, No. 08-02 (June 26, 2008), available at http://www.usace.army.mil/cw/cecwo/reg/rgls/ rgl08-02.pdf. Of course, in this circumstance, the necessity of some form of guidance (or rulemaking or Congressional action) is apparent-the Government Accountability Office has reported on the lack of consistency in implementation of the program among the various Corps district offices. See U.S. GOV't ACCOUNTABILITY OFFICE, REP. NO. GAO-04-297, WATERS AND WETLANDS: CORPS OF ENGINEERS NEEDS TO EVALUATE ITS DISTRICT OFFICE PRACTICES IN DETERMINING JURISDICTION 17 (2004), available at http://www.gao.gov/ new.items/dO4297.pdf.
98. See, e.g., Pesticide Registration (PR) Notice 2001-X Draft: Spray and Dust Drift Label Statements for Pesticide Products, http://www.epa.gov/PR- Notices/prdraft-spraydrift801.htm (last visited Oct. 8, 2008).
99. See, e.g., Guidance on the CERCLA Section 101(10)(H) Federally Permitted Release Definition for Clean Air Act "Grandfathered" Sources, 67 Fed. REG. 19,750 (Apr. 23, 2002).
100. See Clean Air Act Enforcement, http://cfpub.epa.gov/compliance/ resources/policies/civil/caa/ (last visited Oct. 8, 2008).
101. EPA, for instance, maintains a database of policy and guidance documents for its water quality standards program. See http://www.epa.gov/ watersscience/library/standards/policy.htm (last visited Jan. 19, 2009). EPA first released its WATER QUALITY STANDARDS HANDBOOK in 1994, and in June of 2007 that handbook became available on line. See U.S. Envtl. Prot. Agency Website, Water Quality Standards Handbook, http://www.epa.gov/waterscience/standards/handbook/ (last visited Oct. 8, 2008). See generally Environmental LAW REPORTER, CLEAN WATER DESKBOOK 171-445 (Environmental Law Institute 1991) (1988) (compiling CWA guidance documents). The Clinton Administration announced in a policy statement, the Clean Water Action Plan, its approach toward enforcing and implementing the CWA. See Barton H. Thompson, Jr., Conservation Options: Toward A Greater Private Role, 21 Va. ENVTL L.J. 245, 264 n.47 (2002).
102. See U.S. Envtl. Prot. Agency, RCRA Online, http://www.epa.gov/ rcraonline/ (last visited Oct. 8, 2008).
103. When APA challenges were brought against the 1989 WETLANDS DELINEATION MANUAL, the courts dismissed the cases on ripeness grounds. Merlino v. United States, 1991 WL 152378 (W.D. Wash. 1991); Mulberry Hills Dev. Corp. v. United States, 772 F. Supp. 1553 (D. Md. 1990).
104. See Compensatory Mitigation for Losses of Aquatic Resources, 73 Fed. REG. 19594, 19595 (Apr. 10,2008).
105. See U.S. FISH & WILDLIFE SERV. & NAT'L MARINE FISHERIES SERV., ENDANGERED SPECIES CONSULTATION HANDBOOK: PROCEDURES FOR CONDUCTING CONSULTATION AND CONFERENCE ACTIVITIES UNDER sECTION 7 OF THE ENDANGERED SPECIES ACT (1998), available at http://www.fws.gov/endangered/consultations/s7hndbk/s7hndbk.htm; U.S. FISH & WILDLIFE SERV. & NAT'L MARINE FISHERIES SERV., HABITAT CONSERVATION PLANNING AND INCIDENTAL TAKE PERMIT PROCESSING HANDBOOK (1996), available at http://www.fws.gov/endangered/HCP/Hcpbook.htm; Notice of Availability of Final Handbook for Habitat Conservation Planning and Incidental Take Permitting Process, 61 Fed. REG. 63,854 (Dec. 2, 1996) (advising public of handbook); See also infra note 357 (discussing the use of guidance for the listing of species under the ESA). For many years, the National Park Service managed concessions operations in the national parks in accordance with a manual. See Nat'l Park Concessions, Inc. v. Kennedy, 1996 WL 560310, at *3, *51 (W.D. TEX. Sept. 26, 1996) (magistrate judge recommending that manual NPS-48 be subject to notice and comment rulemaking).
106. See generally Robert L. Fischman, From Words to Action: The Impact and Legal Status of the 2006 National Wildlife Refuge System Management Policies, 26 STAN. ENVTL. L. J. 77 (2007).
107. See generally MICHAEL ASIMOW, ADVICE TO THE PUBLIC FROM FEDERAL ADMINISTRATIVE AGENCIES (1973).
108. U.S. DEP'T OF JUSTICE, ATTORNEY GENERAL'S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 30 n.3 (1947).
109. See FRIENDLY, ADMINISTRATIVE AGENCIES, supra note 11, at 145 (urging greater use of policy documents and rulemakings in lieu of case-by-case adjudications).
110. In February 2008, for instance, the National Park Service rescinded a cruise ship management policy for Glacier Bay, Alaska-a policy which had been issued in 1990-because of its alleged incompatibility with a law that Congress passed in 1998. Rescind 1990 Cruise Ship Management Policy, Glacier Bay National Park & Preserve, Alaska, 73 Fed. REG. 6736 (Feb. 5, 2008).
111. See, e.g., Airport Comm'n of Forsyth County, North Carolina v. Civil Aeronautics Bd., 300 F.2d 185 (4th Cir. 1962). The lack of clear standards for distinguishing policy statements from legislative rules is not new. The Final Report of the Attorney General's Committee on Administrative Procedure, directed by Walter Gellhorn, recognized the distinction between interpretative rules and those that would be "legally binding." The latter "receive statutory force upon going into effect," while the former, the report continues, do not receive statutory force and their validity is subject to challenge in any court proceeding in which their application may be in question ⋯. This distinction between statutory regulations and interpretative regulations is, however, blurred by the fact that the courts pay great deference to the interpretive regulations of administrative agencies, especially where these have been followed for a long time ⋯. Consequently the procedures by which these regulations are prescribed become important to private interests⋯. REPORT OF THE ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE, ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES, S. Doc. No. 8, 77th Cong., 1st Sess. (1941) (on file with author).
112. E.g., Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them to Bind the Public?, 41 DUKE L. J. 1311 (1992);
113. Michael Asimow, Nonlegislative Rulemaking and Regulatory Reform, 1985 DUKE L.J. 381 (1985);
114. Arthur Earl Bonfield, Some Tentative Thoughts on Public Participation in the Making of Interpretive Rules and General Statements of Policy under the A.P.A., 23 ADMIN. L. REV. 101 (1971);
115. William Funk, Legislating for Nonlegislative Rules, 56 ADMIN. L. REV. 1023 (2004);
116. William Funk, When is a "Rule " a Regulation? Marking a Clear Line Between Nonlegislative Rules and Legislative Rules, 54 ADMIN. L. REV. 659 (2002);
117. John F. Manning, Nonlegislative Rules, 72 GEO. WASH. L. REV. 893 (2004);
118. Richard J. Pierce, Jr., Distinguishing Legislative Rules from Interpretive Rules, 52 ADMIN. L. REV. 547 (2000);
119. Peter L. Strauss, surpa note 33;
120. Russell L. Weaver, An APA Provision on Nonlegislative Rules?, 56 ADMIN. L. REV. 1179 (2004).
121. "[S]ubstantive rules" [are] those that effect a change in existing law or policy or which affect individual rights and obligations. "Interpretive rules," on the other hand, clarify or explain existing law or regulation and are exempt from notice and comment under section 553(b)(A)⋯. "[A]n interpretive statement simply indicates an agency's reading of a statute or a rule. It does not intend to create new rights or duties, but only reminds affected parties of existing duties." Splane v. West, 216 F.3d 1058, 1063 (Fed. Cir. 2000) (quoting Paralyzed Veterans of Am. v. West, 138 F.3d 1434, 1436 (Fed. Cir. 1998), quoting Orengo Caraballo v. Reich, 11 F.3d 186, 195 (D.C. Cir. 1993)). In Splane, the court concluded that a general counsel opinion was "interpretive" and therefore not subject to a notice and comment process. Id. at 1070. Conversely, in Coalition for Common Sense in Government Procurement v. Secretary of Veterans Affairs, the Federal Circuit held that a "Dear Manufacturer" letter, requiring that manufacturers refund the difference between a drug's wholesale commercial price and the associated federal ceiling price, was a substantive rule ripe for judicial review. 464 F.3d 1306, 1317-18 (Fed. Cir. 2006). The court reasoned that the "letter is substantive in nature because it changes existing law and affects individual obligations." Id. at 1317.
122. United States v. Fifty-Three Eclectus Parrots, 685 F.2d 1131, 1136 (9th Cir. 1982). See also Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000); United States v. Alarneda Gateway Ltd., 213 F.3d 1161,1168 (9th Cir. 2000); James v. U.S. Parole Comm'n, 159 F.3d 1200,1205-06 (9th Cir. 1998).
123. See Ass'n of Am. Med. Colls, v. United States, 217 F.3d 770, 780-85 (9th Cir. 2000) (not allowing pre-enforcement review of nationwide program for audits under the Medicare, where parties claimed that audit program contained new billing requirement standards not contained in the Act or regulations); Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1296 (D.C. Cir. 2000) (challenge to conclusion in preamble to a final rule not ripe, particularly where agency subsequently clarified that it was not a final decision); Mobile Exploration & Producing U.S., Inc. v. Dep't of the Interior, 180 F.3d 1192, 1197-99 (9th Cir. 1999) (agency audit engagement letter effectively initiating a proceeding not a final agency action). But See Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, 48 (D.C. Cir. 2000) ("In Ciba-Geigy we held that a letter from an agency official stating the agency's position and threatening enforcement action unless the company complied constituted final agency action."); Arizona v. Shalala, 121 F. Supp.2d 40, 50 (D. D.C. 2000) (court held that a guidance document was a reviewable final agency action), rev'don other grounds 281 F.3d 248 (D.C. Cir. 2002).
124. 225 F.3d 1144,1149 (10th Cir. 2000).
125. Id. at 1146,1148.
126. Id. at 1146.
127. Id. at 1147-49. See also Colorado Farm Bureau Fed'n v. U.S. Forest Service, 220 F.3d 1171 (10th Cir. 2000) (no final, reviewable agency action where plaintiff challenged agency agreement and letter addressing a state plan to reintroduce the Canadian lynx into the state).
128. 242F.3dl097, 1102 (9th Cir. 2001).
129. Id. at 1101.
130. Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng'rs, 2000 U.S. Dist. LEXIS 10131 (E.D. Va. Mar. 9, 2000), aff'd, 2001 U.S. App. LEXIS 646 (4th Cir. Jan. 17,2001).
131. Id. at 2000 U.S. Dist. LEXIS *8-9. But cf. Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000) (allowed challenge to agency general counsel opinion, reasoning that jurisdiction existed under 38 U.S.C. § 502 to review interpretive rules); Alliance for Bio-Integrity v. Shalala, 116 F. Supp.2d 166 (D.D.C. 2000) (allowed challenge to policy statement, although concluding that notice-and-comment rulemaking not required).
132. See Molycorp, Inc. v. EPA, 197 F.3d 543 (D.C. Cir. 1999); Louisiana Envtl. Action Network v. EPA, 172 F.3d 65 (D.C. Cir. 1999) (discussing preamble language). Those factors are: (1) the agency's own characterization of its actions; (2) whether the document was published in the Federal Register or the Code of Federal Regulations; and (3) whether the action has a binding effect on private parties or the agency. Louisiana Envtl. Action Network, 172 F.3d at 69; see also Florida Power & Light Co. v. EPA, 145 F.3d 1414, 1418 (D.C. Cir. 1998) (dismissing petition for review of statements in a preamble to a proposed rule, concluding that no "final regulations" had been issued and the case was not yet ripe); Am. Portland Cement Alliance v. EPA, 101 F.3d 772, 776 (D.C. Cir. 1996); Gen. Motors Corp. v. Ruckelshaus, 742 F.2d 1561 (D.C. Cir. 1984) {en bane). One court described the D.C. Circuit's test as a two-part inquiry for determining whether an agency action is a policy statement or a document that should have been issued as a substantive rule: "[p]olicy statements (1) must not impose any new rights or obligations, and (2) must 'genuinely leave the agency and its decision-makers free to exercise discretion'" and in weighing these criteria "the ultimate issue is the agency's intent to be bound." Alliance for Bio-Integrity v. Shalala, 116 F. Supp.2d 166, 172 (D.D.C. 2000) (citations omitted). The D.C. Circuit early on applied a legal effects test. Gibson Wine Co. v. Snyder, 194 F.2d 329, 331 (D.C. Cir. 1952).
133. See Florida Power & Light Co. v. EPA, 145 F.3d 1414, 1418 (D.C. Cir. 1998); Am. Portland Cement Alliance v. EPA, 101 F.3d 772, 776 (D.C. Cir. 1996). In Pacific Gas & Electric v. Federal Power Commission, the court indicated that documents not promulgated in accordance with the appropriate procedures generally are not substantive, enforceable rules. 506 F.2d 33 (D.C. Cir. 1974). Rather, such documents announce the "agency's tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued." Id. at 38.
134. Alaska Prof 1 Hunters Ass'n, Inc. v. FAA, 177 F.3d 1030, 1034 (D.C. Cir. 1999); see also Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997); Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997). Cf. City of Dania Beach v. FAA, 485 F.3d 1181 (D.C. Cir. 2007) (letter a reviewable decision when agency announced a new interpretation); Ass'n of Am. R.R.S v. Dep't of Transp., 198 F.3d 944, 949-50 (D.C. Cir. 1999) (informal technical bulletin upheld where party had not relied on any prior agency interpretation and no formal agency decisions to the contrary). See generally Jon Connolly, Note, Alaska Hunters and the D. C. Circuit: A Defense of Flexible Interpretive Rulemaking, 101 COLUM. L. REV. 155 (2001) (critical of D.C. Circuit decision). Other courts also explore whether an interpretation changes a prior interpretation. See, e.g., SBC Inc. v. Fed. Commc'ns Comm'n, 414 F.3d 486, 501-02 (3d Cir. 2005). To the extent that a change in a prior interpretation of a regulation is accomplished outside the APA rulemaking process, the doctrine of "fair notice" may apply. See United States v. Chrysler Corp., 158 F.3d 1350, 1356 (D.C. Cir. 1998) ("an agency is hard pressed to show fair notice when the agency itself has taken action in the past that conflicts with its current interpretation of a regulation."); Satellite Broadcasting Co., Inc. v. Fed. Commc'ns Comm'n, 824 F.2d 1, 3 (D.C. Cir. 1987) ("Traditional concepts of due process incorporated into administrative law preclude an agency from penalizing a private party for violating a rule without first providing adequate notice of the substance of the rule."). This doctrine, however, arguably should have currency only when an interested party has legitimate due process protections.
135. 127 S. Ct. 2339, 2349 (2007) ("But as long as interpretive changes create no unfair surprise- and the Department's recourse to notice-and-comment rulemakings in an attempt to codify its new interpretation ⋯makes any such surprise unlikely here-the change in interpretation alone presents no separate ground for disregarding" it).
136. 208 F.3d 1015, 1028 (D.C. Cir. 2000).
137. Richard G. Stoll, Court Strikes Heavy Blow to "Rulemaking" Through Informal Guidance Documents, 31 BNA ENV'T REP. 24, 1284 (2000).
138. Appalachian Power, 208 F.3d at 1017, 1025.
139. Id. at 1019.
140. Id. at 1023-1024.
141. Id. at 1020. EPA farther raised ripeness as an issue, but the court summarily rejected the argument. Id. at 1023 n.18.
142. Id. at 1020.
143. Id. at 102 In. 10.
144. Appalachian Power Co. v. EPA, 208 F.3d 1015,1023 (D.C. Cir. 2000).
145. Id. at 1021-22.
146. If the "binding" nature of the action is not necessarily sufficient for finality, the court curiously added that an agency action could be final without being "binding." Id. at 1022 n.15. Of course, this might suggest that the court unnecessarily engaged in an analysis of the "binding" nature of the PMG to determine its jurisdiction.
147. Id. at 1022.
148. Id. at 1022-24.
149. Id. at 1023. The court summarized its analysis by stating that "[t]he short of the matter is that the Guidance, insofar as relevant here, is final agency action, reflecting a settled agency position which has legal consequences both for State agencies administering their permit programs" as well as for private parties. Id.
150. Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023-26 (D.C. Cir. 2000).
151. Id. at 1028.
152. Id. at 1021.
153. Id. at 1023.
154. Id. at 1022.
155. See, e.g., Id. at 1022 ("State agencies must do so"); Id. at 1023 ("[T]he entire Guidance, from beginning to end-except the last paragraph-reads like a ukase. It commands, it requires, it orders, it dictates.").
156. Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d 45 (D.C. Cir. 2000).
157. "The company alleges that in applying the program [Emergency Planning and Community-Right-to-Know Act, 42 U.S.C. § 11023] to mining, EPA in fact revised the program; that its revision were substantive; that they were not made through rulemaking, as they should have been; and that the revisions were made instead through statements in 'rulemaking preambles' and in detailed directives issued in the form of 'guidance' and a letter." Id. at 47.
158. Id. at 47-48.
159. see id. 47-48.
160. Id. at 47-48. See also Arizona v. Shalala, 121 F. Supp. 2d 40 (D.D.C. 2000) (allowing challenge to an interpretive rule as final agency action), rev'don other grounds, 281 F.3d 248 (D.C. Cir. 2002).
161. 329 F.3d 876 (D.C. Cir. 2003).
162. Id. at 879-80.
163. Id. at 880.
164. Id. at 881.
165. Id. The directive was binding because parties could no longer rely upon human studies. Id. at 883. Nor could it be classified as a policy statement; the court identified two tests that it had applied in the past for distinguishing policies from legislative rules: one test whose analysis focuses on the "effects" of the agency action, and another whose analysis focuses on the "agency's expressed intentions." Id. Both tests, the court added, nevertheless converge when examining whether the challenged action is binding on the agency or private parties. Id.
166. Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022 (D.C. Cir. 2000).
167. The Clean Air Act authorizes the D.C. Circuit to hear appeals from certain "rules" and "final action[s] taken." 42 U.S.C. § 7607(b) (2006). The Appalachian Power court noted that it did not have to resolve two conflicting lines of cases interpreting whether a policy statement is a "rule," 208 F.3d at 1021 n.13, ostensibly because it concluded that the policy guidance was a "final action taken." The court reasoned that a final action is one that marks the "'consummation' of the agency's decision-making process" and "by which 'rights or obligations have been determined,' for from which 'legal consequences will flow' ⋯." Id. at 1022. The PMG satisfied these criteria, according to the court, because the decision-making process on the PMG had concluded and the PMG appeared to be binding- that is, it constituted a rule. Id. Elsewhere in its opinion, while the court notes that the case has been presented "in pure abstraction," it nonetheless rejects the notion that the case is not ripe, concluding that nothing could impact the outcome. Id. at 1024 The court further adds that a challenge to a particular permit might escape review by the D.C. Circuit, the court entrusted with reviewing the validity of EPA's action under the CAA. Id. at 1023 n.18.
168. 434 F.3d 584 (D.C. Cir. 2006).
169. 452 F.3d 798 (D.C. Cir. 2006).
170. 493 F.3d 207 (D.C. Cir. 2007). The court's analysis mirrored its earlier opinions in General Motors Corp. v. EPA, 363 F.3d 442 (D.C. Cir. 2004), and Independent Equipment Dealers Ass 'n v. EPA, 372 F.3d 420 (D.C. Cir. 2004). In General Motors, EPA issued a letter addressing whether certain solvents were solid wastes, under RCRA. 363 F.2d at 445. Although the letter reiterated an earlier interpretation by the agency, the petitioner nevertheless sought judicial review pursuant to RCRA's judicial review provision. Id. at 447. The court held that the letter was not a final regulation reviewable under the statute. Id. at 453.
171. Wilderness Society, 434 F.3d at 595.
172. Id. at 595.
173. Id.
174. Wilderness Society v. Norton, 434 F.3d 584, 595 (D.C. Cir. 2006).
175. Id. at 596.
176. Id.
177. Id.
178. See Id. at 596-97.
179. Id.
180. 434 F.3d 584, 595-96 (D.C. Cir. 2006).
181. Id. at 596.
182. Id.
183. Id.
184. Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798 (D.C. Cir. 2006).
185. Id. at 802.
186. Id. at 803.
187. Id. at 804.
188. Id. at 811.
189. Id. at 806.
190. Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798, 807 (D.C. Cir. 2006).
191. Id. at 806-07 (citations omitted).
192. Id. at 808. The court analogized to AT&T Co. v. EEOC, 270 F.3d 973 (D.C. Cir. 2001), involving a challenge to an agency's legal interpretation of a company's obligation under the Pregnancy Discrimination Act of 1979. see id. In AT&T, the agency's compliance manual provided an interpretation of the Act (which adopted a Ninth Circuit's interpretation of the Act in lieu of a contrary interpretation by the Seventh Circuit). AT&T, 270 F.3d at 974. Pursuant to a request by AT&T, the agency provided a letter of determination on the applicability of the Act to AT&T, reaffirming its adherence to the interpretation in the manual-and thus to the Ninth Circuit's interpretation. Id. AT&T sought a declaratory judgment, although admitting that the letter itself was not a final agency action. Id. at 975. The court rejected AT&T's suggestion that the principles of Appalachian Power Co. ought to apply, reasoning that neither the manual nor the letters inflicted any injury upon AT&T and the manual and letter would only be relevant in any subsequent action by the agency to the extent a court might find the analysis persuasive. Id. at 976. Cf. City of Dania Beach v. FAA, 485 F.3d 1181 (D.C. Cir. 2007) (FAA letter authorizing activity contained a new interpretation and, as such, held to be a reviewable final agency order).
193. Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798, 809-10 (D.C. Cir. 2006).
194. Id. at 810.
195. Id. at 809.
196. Id. at 811.
197. Id.
198. See Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207 (D.C. Cir. 2007).
199. Id. at 214.
200. Id. at 212-14.
201. Id. at 213-13.
202. Mat 215-17, 226.
203. See 42 U.S.C. § 6976(a)(l) (2006). EPA emphasized that the case would become ripe only when the rule and guidance became employed in a particular case. Final Brief for Respondent, Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207 (D.C. Cir. 2007), 2007 WL 681995 (Feb. 28, 2007).
204. Id.
205. Because the D.C. Circuit exercised jurisdiction only over rulemakings, the court observed that it either lacked jurisdiction or the guidance document constituted a rulemaking and, if so, had to be vacated for lack of compliance with notice-and-comment requirements. Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 226 (D.C. Cir. 2007).
206. Id. at 226-28.
207. 197 F.3d 543 (D.C. Cir. 1999). See supra note 75 and accompanying text.
208. Cement Kiln Recycling Coal, 493 F.3d at 226-27.
209. Id. at 227.
210. Id.
211. Id. at 228.
212. 494 F.3d 1027 (D.C. Cir. 2007).
213. Id. at 1028. An AFO is a lot or facility where certain animals are confined and fed for at least 45 days a year and where "crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility." Concentrated Animal Feeding Operations, 40 C.F.R. § 122.23(b)(l) (2007).
214. U.S. ENVTL. PROT. AGENCY, NON- WATER QUALITY IMPACT ESTIMATES FOR ANIMAL FEEDING OPERATIONSpt.l, at 1-5 (2002), available at http://www.epa.gov/npdes/pubs/cafo-nonwaterquality.pdf. The National Academy of Sciences notes that "stakes in this issue are large. More and more livestock are raised for at least part of their lives in AFOs in response to economic factors that encourage further concentration. The impacts on the air in surrounding areas have grown to a point where further actions to mitigate them appear likely." NATIONAL RESEARCH COUNCIL, THE SCIENTIFIC BASIS FOR ESTIMATING AIR EMISSIONS FROM ANIMAL FEEDING OPERATIONS: INTERIM REPORT 7 (2002) [hereinafter ESTIMATING AIR EMISSIONS].
215. The National Research Council's report observes that "[e]stimating emissions of gases, PM, and other substances from AFOs is technically difficult." Id. at 11.
216. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. REG. 4958 (Jan. 31, 2005). In late 2001, EPA commissioned a report from the National Academies, AIR EMISSIONS FROM ANIMAL FEEDING OPERATIONS: CURRENT KNOWLEDGE, FUTURE NEEDS (2003). Thereafter, EPA and the AFO industry crafted an acceptable compliance program. Petitioners' Opening Brief at 12, Ass'n of Irritated Residents v. EPA, 494 F.3d 1027 (D.C. Cir. 2007) (No. 05-1177) (2006 WL 3622127). See Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. REG. 40016 (July 12, 2005) (EPA discusses that it worked with stakeholders in drafting the consent agreements). EPA's January 31, 2005 Federal Register notice to the AFOs was only the first step in the process. While the agency began signing up farms, it also solicited public comment and subsequently issued another Federal Register notice on March 30, 2005, which re-opened the comment period in the earlier notice and extended the sign up period for the industry. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. REG. 16266 (Mar. 30, 2005). EPA subsequently further extended the sign-up period. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. REG. 40016 (July 12, 2005); Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. REG. 44631 (Aug. 3, 2005). Once participating farms signed up, EPA had to countersign the consent agreements and then submit them to the Environmental Appeals Board (EAB) for approval. Over 2,500 AFO owners executed the agreements, totaling approximately 14,000 facilities.
217. Petitioners' Opening Brief at 25, Ass'n of Irritated Residents v. EPA, 494 F.3d 1027 (D.C. Cir. 2007) (No. 05-1177) (2006 WL 3622127).
218. Id. Petitioners refer to challenging the "Agreement," which they define as the three notices. Id. at 4.
219. Id.
220. Id.
221. The D.C. Circuit exercises jurisdiction under section 307 of the CAA (over "any other nationally applicable regulations promulgated, or final action taken, by the Administrator"), 42 U.S.C. § 7607(b)(l) (2006), § 113 of CERCLA (over "any regulation promulgated under this chapter"), 42 U.S.C. § 9613(a) (2006), and generally under the APA for alleged EPCRA violations as the "court of competent jurisdiction." 5 U.S.C. § 703 (2006).
222. Brief for Respondent United States Environmental Protection Agency at 14-15, 26-44, Ass'n of Irritated Residents v. EPA, 494 F.3d 1027 (D.C. Cir. 2007) (No. 05-1177) (2007 WL 432411).
223. Id. at 14-15, 26-44.
224. Id.
225. EPA asserted that "the agency action must create new rights or obligations that govern future behavior. The consent agreements do not create any new rights or obligations but resolve the respondents' liability for potential violations of existing conditions." Id. at 37. EPA dismissed petitioners' two principal cases, National Ass'n of Homebuilders v. U.S. Army Corps of Engineers, 417 F.3d 1272 (D.C. Cir. 2005), and Croplife America v. EPA, 329 F.3d 876 (D.C. Cir. 2003), arguing that the challenged agency action in the former case involved the creation of a future specific right, while the latter involved a binding change in agency policy. Id. at 37-38. EPA also argued that the consent agreements did not limit EPA's discretion; rather, the agreements reflected EPA's exercise of enforcement discretion and the agency retained its power to proceed against any AFO not signing an agreement or violating any agreement. EPA distinguished Community Nutrition Institute v. Young, 818 F.2d 943 (D.C. Cir. 1987), emphasizing that in Young, the agency had constrained its enforcement discretion-quite different than the Federal Register notices here. Id. at 40-41. EPA fiirther distinguished Alaska v. DOT, 868 F.2d 441 (D.C. Cir. 1989), asserting that the agency had issued orders that revised existing regulations and established a bright-line test, while here "[n]either the Federal Register notices nor the consent agreements create such a bright-line test." Id. The AFO industry, as interveners, primarily tried to persuade the court that EPA's decisions were reasonable, emphasizing the lack of scientific methodology for addressing air emissions from livestock and similar operations and the problem with attempting to address the issue through actions under section 114 of the CAA. Brief of Interveners for Respondents National Pork Producers Council and Roe Farm, Inc., Ass'n of Irritated Residents v. EPA, 494 F.3d 1027 (D.C. Cir. 2007) (No. 05-1177), 2007 WL 552103 (Feb. 16, 2007).
226. Ass'n of Irritated Residents v. EPA, 494 F.3d 1027, 1033,1037 (D.C. Cir. 2007).
227. Id. at 1030.
228. 470 U.S. 821(1985).
229. Ass'n of Irritated Residents, 494 F.3d at 1032-33.
230. Id. at 1031. The prior case, Schering Corp. v. Heckler, 779 F.2d 683 (D.C. Cir. 1985), involved a lawsuit brought by a drug manufacturer against the Food and Drug Administration (FDA), alleging that the FDA had improperly settled an enforcement proceeding against a rival drug manufacturer. The settlement there succeeded two district court actions involving the question of whether the drug manufacturer was selling a "new animal drug" without first having received FDA approval and the legal issue of whether genetically identical drugs fell within the FDA's statute-an issue left open in a 1983 Supreme Court decision. See United States v. Generix Drug. Corp., 460 U.S. 453 (1983). The Schering settlement agreement required that the drug manufacturer submit a petition to the agency, requesting that the agency determine whether to classify the drug as a new animal drug under the statute. 779 F.2d at 685. About a month after that petition had been filed with the FDA, the competing drug manufacturer filed an action in district court challenging the settlement agreement. Id. The district court dismissed the case, reasoning that the "agency has merely postponed any decision with regard to
231. Ass 'n of Irritated Residents, 494 F.3d at 1031.
232. Id.
233. Id.
234. Id. at 1032.
235. Id. at 1033.
236. Id. Petitioners argued that the compliance agreement was a rule under the APA, because it operated prospectively, prescribed obligations, and constrained EPA's enforcement discretion. Petitioners' Opening Brief at 25, Ass'n of Irritated Residents v. EPA, 494 F.3d 1027 (D.C. Cir. 2007) (No. 05-1177), 2006 WL 3622127. They further noted that EPA's action constituted a rulemaking as it "seeks to resolve broad policy questions." Petitioners' Amended Reply Brief at 2, Ass'n of Irritated Residents v. EPA, 494 F.3d 1027 (D.C. Cir. 2007) (No. 05-1177), 2007 WL 917334. Indeed, petitioners expressed concern with the precedent that this case might establish and referred to what "[l]egal scholars have called this emerging trend by administrative agencies 'regulation by litigation.'" Id. at 15 (citations omitted).
237. Ass'n of Irritated Residents v. EPA, 494 F.3d 1027, 1034 (D.C. Cir. 2007). He distinguished Community Nutrition Institute v. Young, 818 F.2d 943 (D.C. Cir. 1987) (per curiam), where the court held that the Food and Drug Administration's "announcement of action levels that specified when merchants would be subject to enforcement proceedings under the statute constituted a rule." Id.
238. 417 F.3d 1272 (D.C. Cir. 2005). Homebuilders involved a challenge to the U.S. Army Corps' issuance of certain nationwide permits, allowing qualified parties to avoid having to submit an individual permit application for regulated CWA section 404 activities. The court had little trouble concluding that the Corps' action was both final and subject to review-the Corps was defining who could proceed through a less rigorous process in lieu of an individual permit. see id. at 1284. In response to the claim that it had not complied with the Regulatory Flexibility Act, the Corps argued that its action, even if final, did not constitute a rulemaking, but instead operated as an adjudication. Id. The Homebuilders court held otherwise, noting that '"rules is rules,' no matter their gloss" and each of the nationwide permits "is a legal prescription of general and prospective applicability which the Corps has issued to implement" its congressionally delegated permitting authority. Id. at 1284-85.
239. 329 F.3d 876 (D.C. Cir. 2003).
240. Ass 'n of Irritated Residents, 494 F.3d at 1033-34.
241. Id. Mindful of Chaney's cautionary footnote 4, where the Court intimated that judicial review might be available if the agency has '"consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities,'" Judge Sentelle also added that nothing here suggested that EPA had adopted a policy of not enforcing the acts. Id. at 1035-36 (citing Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1984)). And he further rejected the argument that EPA lacked the authority under the relevant statutes to enter into the consent agreements. Id. at 1036-37.
242. Id. at 1037-46 (Rogers, J., dissenting).
243. Id. at 1039 (Rogers, J., dissenting).
244. Id.
245. Id. at 1040 (Rogers, J., dissenting).
246. Heckler v. Chaney, 470 U.S. 821, 831-33 (1984). Judge Sentelle, while focusing on footnote 4 of Chaney, avoided the Court's accompanying language emphasizing that the Court was establishing only a presumption of un-reviewability that could be rebutted when the agency's underlying statutory authority "provided guidelines for the agency to follow in exercising its enforcement powers." Id. at 833.
247. The Chaney Court observed that, "[f]or us, this case turns on the important question of the extent to which determinations by the FDA not to exercise" enforcement authority is judicially reviewable. Id. at 828 (emphasis in original).
248. Chaney's deviation from the presumption in favor of judicial review under the APA can only be justified if the decision is understood as reflecting the inherent difficulty of determining what law to apply when the agency has not taken any action. Courts at the time of Chaney had not yet struggled with how to address those instances where inaction would constitute "action" under the APA. Although he generally criticizes the weak reasoning of the Court in Chaney, Cass Sunstein notes that the Court avoided more knotty issues, such as the failure of an agency to undertake a rulemaking. Cass R. Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U. CHI. L. REV. 653, 675 (1985). See generally Eric Biber, Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction, 26 VA. ENVTL L J. 461 (2008); Eric Biber, The Importance of Resource Allocation in Administrative Law, 60 ADMIN. L. REV. 1 (2008).
249. Ass'n of Irritated Residents v. EPA, 494 F.3d 1027, 1036 (D.C. Cir. 2007).
250. see id. at 1030.
251. EPA admitted "[w]hile [it] has the authority on a case-by-case basis to require AFOs to monitor their emissions and to come into compliance with applicable Federal laws, that process has proven to be difficult and time consuming ⋯." Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. REG. 4958 (Jan. 31, 2005). The agency further suggested that it was not exercising enforcement authority when it added that it "believe[d] that the alternative to the Agreement suggested by several commenters-using enforcement authority to order AFO to measure their emissions and to comply with all applicable environmental requirements would take much longer."Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. REG. 40018 (July 12, 2005).
252. Ass'n of Irritated Residents, 494 F.3d at 1030; 5 U.S.C. § 551(4) (2006).
253. For the most part, it was the program announced in the Federal Register notices containing the generic language of the consent agreements, not the ultimate individual agreements entered into by a vast majority of the industry, which petitioners attempted to challenge as a rulemaking. The agency even developed the compliance program as if it were a negotiated rulemaking, with stakeholder participation, circulation of drafts and even some measure of public comment. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. REG. 40016 (July 12, 2005). It established a nationwide monitoring protocol, with the ultimate goal of allowing the agency and industry to identify what farms to regulate. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. REG. 4958 (Jan. 31, 2005). This program, moreover, appears to have been precipitated when some states in their rulemakings under the CAA (the development of State Implementation Plans) had exempted these sources from regulation. As Judge Rogers lamented, EPA's new enforcement protocol will have significant and immediate negative consequences ⋯. Ensuring accountability and informed decisionmaking means an agency needs to hear form those who are affected before it adopts an enforcement policy that eliminates enforcement of several statutes for years for a significant part of the AFO industry ⋯. Ass'n of Irritated Residents, 494 F.3d at 1043-44.
254. A good example is National Ass'n of Homebuilders v. Norton, 415 F.3d 8 (D.C. Cir. 2005). There, the United States Fish and Wildlife Service noticed in the Federal Register the availability of protocols that private parties could use to determine the possible presence of a particular species protected under the ESA and, as such, the likely need for such parties to obtain a permit under the Act. Id, at 11-12. The plaintiff argued that the protocols amounted to a substantive rule and should have been adopted in accordance with the APA. Id. The court effectively examined whether the protocols were binding, and concluding that they were not, held that that the protocols could not be judicially reviewed as final agency action. Id. at 13-17.
255. See Appalachian Power Co. v. EPA, 208 F.3d 1015, 1021 (D.C. Cir. 2000).
256. As explained later, greater deference may apply when an agency acts pursuant to notice-and-comment rulemaking. See infra notes 274-360 and accompanying text. Mathew C. Stephenson aptly notes that the level of formality surrounding the process an agency uses to announce its views may affect the agency's judgment on its prospects before a reviewing court. Mathew C. Stephenson, The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations, 120 HARV. L. REV. 528, 546 (2006). An agency is likely to interpret a statute more aggressively when employing formal procedural tools, in large measure because "the level of actual deference to agency interpretative decisions will be higher when the agency proceeds formally ⋯." Id. at 552. See also Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027, 2137-48 (2002);
257. M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. CHI. L. REV. 1383, 1437-42(2004).
258. 469 F.3d 826 (9th Cir. 2006), vacated en bane, 490 F.3d 725 (9th Cir. 2007).
259. Id. at 829-30.
260. Id. at 831-32.
261. Id. at 839-40.
262. Id. at 839.
263. Id. at 840.
264. Id. at 841-44.
265. Id.
266. Indep. Equip. Dealers Ass'n v. EPA, 372 F.3d 420, 421(D.C. Cir 2004).
267. Id.
268. Id. at 425.
269. Id. at 426-28.
270. Id. at 428.
271. Id.
272. Id.
273. 387 U.S. 136, 148-49 (1967). The underpinning for the ripeness doctrine is not entirely clear, whether it flows from Article III or serves merely serves as a judicial gloss on "finality" under the APA. See Poe v. Ullman, 367 U.S. 497 (1961) (avoiding constitutional issue when not clear that enforcement of challenged statutes would occur); but cf. U.S. Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers AFL-CIO, 413 U.S. 548 (1973) (allowing pre-enforcement challenge when parties indicated that they wanted to engage in the otherwise prohibited conduct). As such, there are those who believe it should be abandoned as a part of any APA review. See John F. Duffy, Administrative Common Law in Judicial Review, 11 TEX. L. REV. 113, 162-75, 179 (1998) (suggesting that the doctrine of ripeness, like the doctrine of exhaustion, has no place in an APA case).
274. 387 U.S. at 148-49.
275. 538 U.S. 803, 808 (2003).
276. Id. at 809 (quoting Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726, 733 (1998)).
277. Id. at 809-10.
278. Id. at 812. Concurring, Justice Stevens added that the matter was fit for review but that the failure of the party to allege a sufficient injury to establish standing is what led him to believe that the case was not ripe. Id. at 813-16 (Stevens, J., concurring). Justice Stevens notably observed that applying ripeness principles involved an "exercise of judgment." Id. at 814 (Stevens, J., concurring). Meanwhile, Justices Breyer and O'Connor would have treated the case as ripe for review. To them, the matter involved a final and ripe agency action, although little is said in their opinion about "ripeness," except that they believed that the case involved deciding the validity of an interpretive rule, which did not necessarily require any further factual development. Id. at 819-20 (Breyer, J., dissenting).
279. 520 U.S. 154, 177-78 (1997).
280. Id. at 159.
281. Id. at 159, 170.
282. Id. at 161.
283. See generally Sam Kalen, Standing on its Last Legs: Bennett v. Spear and the Past and Future of Standing in Environmental Cases, 13 J. LAND USE & ENVTL L. 1 (1997).
284. Bennett v. Spear, 520 U.S. at 177-78 (citations omitted). see also Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 482 (2004) (finality marks the "consummation of the agency's decision-making process, and must either determine 'rights or obligations' or occasion 'legal consequences.'") (citing Bennett v. Spear, 520 U.S. at 177-78 (1997)) (emphasis added).
285. Bennett v. Spear, 520 U.S. at 178; see also Kalen, supra note 225, at 40-41.
286. Bennett v. Spear, 520 U.S. at 178.
287. In National Ass 'n of Homebuilders v. U.S. Army Corps of Engineers, 440 F.3d 459 (D.C. Cir. 2006), for instance, the court reversed a lower court decision that held that a challenge to a regulation was not ripe for review. See also Nat'l Ass'n of Homebuilders v. U.S. Army Corps of Eng'rs., 417 F.3d 1272 (D.C. Cir. 2005) (holding that agency action constituted a rule and was final agency action, ripe for review on certain of the claims).
288. 460 F.3d 13 (D.C. Cir. 2006).
289. Id. at 23.
290. Id. at 16-17.
291. Id. at 17.
292. Id.
293. The plaintiffs filed a supplemental complaint responding to the agency's instruction memorandum, but that claim became moot once the period for the memorandum had expired. Id. at 18. The court also held that ADLF's additional challenge to some site-specific agency actions undertaken in compliance with the program had become moot. Id. at 22-23.
294. Id. at 19-23.
295. see id. at 20 ("The budget request is a broad 'programmatic' statement"); Id. at 21 ("The budget proposal represents the Bureau's latest plan ⋯.").
296. Id. at 23 (Griffith, J., concurring in part, dissenting in part).
297. Id.
298. Gwendolyn McK.ee posits that finality should focus principally on whether the agency action marks the conclusion of a decisionmaking process, and that any fuzziness between finality and ripeness should be separated to avoid unnecessarily flooding the courts. Gwendolyn McKee, Judicial Review of Agency Guidance Documents: Rethinking the Finality Doctrine, 60 ADMIN. L. REV. 371, 407 (2008).
299. See Ass'n of Irritated Residents v. EPA, 494 F.3d 1027 (D.C. Cir. 2007); Fund for Animals, Inc. v. U.S. Bureau of Land Management, 460 F.3d 13 (D.C. Cir. 2006).
300. See supra notes 114-126 and accompanying text.
301. See Editorial, Dirk Kempthorne Arrives, N.Y. TIMES, June 13, 2006, at A22; Editorial, Crossroad in the National Parks, N.Y. TIMES, Feb. 27, 2006, at A18; Editorial, The National Parks Under Siege, N.Y. TIMES, Oct. 21, 2005, at A24; Felicity Barringer, National Park Service Revises Policy on Disturbing Resources, N.Y. TIMES, Oct. 19, 2005, at A16; Editorial, Who Will Care for the National Parks?, N.Y. TIMES, Sept. 5, 2005, at A20; Editorial, Destroying the National Parks, N.Y. TIMES, Aug. 29, 2005, at A14.
302. See National Park Service News Release, NPS Director Testifies at Congressional House Hearing, Feb. 15, 2006 (on file with author), available at http://home.nps.gov/applications/release/Detail.cfm?ID=636 (last visited Jan. 23, 2009).
303. NPS Retirees Reject "Hoffman Lite" Version of National Park Service Management Policies, Warn of Grave Dangers Still Posed by Rewrite, available at http://www.prnewswire.com/cgi-bin/stories.pl? ACCT= 104&STORY=/www/story/10-26-2005/0004195754&EDATE=.
304. John W. "Bill" Wade, Chair, Executive Council, Coalition of National Park Service Retirees, Testimony Before the Subcommittee on National Parks, Committee on Resources, House of Representatives, Hearing on "The National Park Service 2006 Draft Management Policies and proposed changes to Director's Order 21," Feb. 15, 2006 (on file with author).
305. See supra notes 114-126 and accompanying text.
306. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 79 n. 1 (D.D.C. 2006) (court rejected looking at alleged violations of the management policies as independent claims, following Wilderness Society v. Norton, 434 F.3d 584 (D.C. Cir. 2006)). In Greater Yellowstone Coalition v. Kempthorne, 577 F. Supp. 2d 183, 192-195 (D.C. Cir. 2008), the court treated the National Park Service's management policies as the official interpretation of the agency's underlying organic statute.
307. 387 F. Supp. 2d 1178 (D. Utah 2005). See also Bassett, New Mexico LLC v. United States, 55 Fed. Cl. 63 (Fed. Cl. 2002) (applying Chevron deference to agency management policy issued under the Federal Land Policy Management Act's provision for adopting management plans).
308. River Runners for Wilderness v. Martin, No. CV-06-894-PCT-DGC, 2007 WL 4200677, at *5-6 (D. Ariz. Nov. 27, 2007), appeal pending. See supra notes 114-126 and accompanying text.
309. River Runners for Wilderness, 2007 WL 4200677, at *5-6. The court relied on United States v. Fifty-Three Eclectus Parrots, 685 F.2d 1131, 1136 (9th Cir. 1982), where the court articulated a two-part test for determining whether a policy would have the force and effect of law: it "must be legislative in nature, affecting individual rights and obligations," and "it must have been promulgated pursuant to a specific statutory grant of authority and in conformance with the procedural requirements imposed by Congress." Id. at *5-9.
310. Id.
311. Id. at *7-8.
312. Christensen v. Harris County, Texas, 529 U.S. 576 (2000).
313. United States v. Mead Corp., 533 U.S. 218 (2001).
314. National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967 (2005).
315. 546 U.S. 243 (2006).
316. See, e.g., Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969 (1992);
317. Laurence H. Silberman, Chevron-The Intersection of Law & Policy, 58 GEO. WASH. L. REV. 821 (1990);
318. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071 (1990).
319. See also Patrick M. Garry, Accommodating the Administrative State: The Interrelationship Between the Chevron and Nondelegation Doctrines, 38 ARIZ. St. L.J. 921 (2006) (arguing that the Chevron doctrine is necessary in light of the status of the nondelegation doctrine). William Eskridge and Lauren Baer present an interesting empirical analysis illustrating that Chevron did not necessarily create a "revolution" in deference to administrative agencies before the Supreme Court; instead the Court has applied "a continuum of deference regimes." William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1090 (2008).
320. See also Krisin E. Hickman & Mathew D. Krueger, In Search of the Modern Skidmore Standard, 108 COLUM. L. REV. 1235 (2007).
321. Barnhart v. Walton, 535 U.S. 212, 217-18 (2002). Deference generally is only afforded to the agency charged with administering the relevant statutory program. See Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 649 (1990) (congressional delegation of administrative authority is a precondition for Chevron deference); California Trout, Inc. v. Fed. Energy Regulatory Commission, 313 F.3d 1131, 1133-34 (9th Cir. 2002) (deference owed only to agency charged with administering program); Dantran, Inc. v. U.S. Dep't of Labor, 246 F.3d 36, 48 (1st Cir. 2001) (deference owed agencies' interpretation of statutes related to their expertise); Am. Rivers v. Fed. Energy Regulatory Commission, 129 F.3d 99, 107 (2d Cir. 1997); Prof 1 Reactor Operator Soc'y v. U.S. Nuclear Regulatory Comm'n, 939 F.2d 1047, 1051 (D.C. Cir. 1991) (not entitled to deference when outside area of expertise); see also Nat'l Parks Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 819-20 (2003) (Breyer, J., dissenting). This same principle counsels against applying Chevron deference to an agency's interpretation of a jurisdiction- conferring statute. See Murphy Exploration & Prod. Co. v. U.S. Dep't of the Interior, 252 F.3d 473, 478 (D.C. Cir. 2001). Also, an agency may claim deference only if it believes that the statutory language is ambiguous; it may not argue for deference when asserting that the statutory language is clear. See Arizona v. Thompson, 281 F.3d 248, 254 (D.C. Cir. 2002).
322. Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 193 (2006). In particular, Sunstein focuses on three cases: FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000); Babbitt v. Sweet Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687 (1995); and MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218 (1994). Id. at 236-42.
323. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844, 865-66 (1984). The Court in Smiley v. Citibank (S.D.), N.A., articulated the reason for deference as follows: We accord deference to agencies under Chevron ⋯because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows. 514 U.S. 735, 740-41 (1996). Cass Sunstein suggests that "[t]here is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the President and those who operate under him." Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 YALE L.J. 2580, 2582 (2006). In an analogous vein to Sunstein's acceptance of agencies' law-interpreting power, Jack Goldsmith and John F. Manning proffer that the President's ability to fill in the details of ambiguous statutes rests upon what they call the President's "completion power." Jack Goldsmith and John F. Manning, The President's Completion Power, 115 YALE L. J. 2280 (2006). Chevron step two is where Kenneth Bamberger would allow agencies to employ normative cannons of interpretation, in the first instance, with courts invested with the power to review norm-impinging agency choices to determine whether the agency's choice promoted or retarded "institutional barriers to accurate norm application." Kenneth Bamberger, Normative Cannons in The Review of Administrative Policymaking, 118 YALE L. J. (forthcoming 2008).
324. This is not to suggest a void in critics of deference. Elizabeth V. Foote, for instance, argues that Chevron inappropriately undermines the appropriate standard of review articulated in either the agency's specific statutory program or the APA. Elizabeth V. Foote, Statutory Interpretation or Public Administration: How Chevron Misconceives the Function of Agencies and Why it Matters, 59 ADMIN. L. REV. 673 (2007).
325. Chistensen v. Harris County, Texas, 529 U.S. 576, 582 (2000).
326. Id. at 586-87.
327. Petitioner actually argued that "[t]he courts must defer to all of the Secretary's 'fair and considered judgment on the matter in question,' even those which are set forth in a brief or opinion letter and not expressly contained in the Department's 'legislative' or 'interpretive' regulations." Petitioner's Brief at 33, Christensen v. Harris County, Texas, 529 U.S. 576 (2000) (No. 98-1167), 1999 WL 1204475 (citing Auer v. Robbins, 519 U.S. 452, 462 (1997)). In its amicus curiae brief supporting the petitioner, the United States similarly cited Auer for the principle that the Secretary's position was entitled to "substantial deference." Brief for the United States As Amicus Curiae Supporting Petitioners at 10, Christensen v. Harris County, Texas, 529 U.S. 576 (2000) (No. 98-1167), 1999 WL 1128266. The United States simply cited Chevron as a "see generally" after it cited Auer as its principle case. Id. at 15.
328. Christensen, 529 U.S. at 587.
329. 323 U.S. 134, 140(1944).
330. Christensen, 529 U.S. at 587 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
331. Id. at 588; see Auer v. Robbins, 519 U.S. 452 (1997).
332. Christensen v. Harris County, Texas, 529 U.S. 576, 588 (2000). This issue prompted Justice Scalia (concurring in part) to respond that Skidmore deference is an "anachronism," and that the Department's opinion letter, to the extent it reflects the Department's authoritative position, should be entitled to Chevron deference. Id. at 590 (Scalia, J., dissenting). Justice Stevens, dissenting, disagreed and noted that the opinion letter was entitled to Skidmore respect. Id. at 595 (Stevens, J., dissenting). Justice Breyer noted that Justice Scalia "may well be right" that the Department's opinion letter warrants Chevron deference, but he disagreed with any suggestion that Skidmore deference is an anachronism. Id. at 596 (Breyer, J., dissenting). Skidmore deference, he added, is an appropriate add-on-or caveat to Chevron-style deference, particularly when there is doubt about whether Congress intended to delegate interpretive authority to the agency. Id. at 596-97 (Breyer, J., dissenting). The Supreme Court in Chevron effectively rejected the Skidmore approach for review of agency interpretation of congressional directives-at least as those interpretations were pursuant to an administrative rulemaking proceeding. See generally David M. Hasen, The Ambiguous Basis of Judicial Deference to Administrative Rules, 17 YALE J. ON REG. 327, 334-36 (2000). I do not subscribe to the view of those, like Mr. Hasen, who argue that Congress cannot be presumed to delegate interpretive power to administrative agencies when Congress has passed ambiguously worded legislation.
333. E.g., Robert A. Anthony & Michael Asimow, The Court's Deferences-A Foolish Inconsistency, ADMIN. & REG. L. NEWS, Vol. 26, No. 1, Fall 2000, at 10.
334. 325 U.S. 410(1945).
335. Id. at 414.
336. Auer, 519 U.S. at 461.
337. John F. Manning argues that Seminole Rock (or ultimately, Auer) deference undermines separation of power principles, and that "Skidmore v. Swift & Co ⋯establishes] a nonbinding version of deference that accounts for an agency's expert judgment when the agency is not exercising delegated interpretive lawmaking power. John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 612, 686 (1996) (emphasis added); see id. at 618, 639, 669, 681. See also Robert A. Anthony, Which Agency Interpretations Should Bind Citizens and Courts?, 1 YALE J. ON REG. 1 (1990). Prior to Christensen, Richard Pierce, typically critical of unnecessary judicial intervention into rulemaking proceedings, deftly suggested that giving "binding effect" to interpretive rules or policy statements would not be an appropriate way to solve the rulemaking dilemma (the ossification of rulemakings) faced by agencies. Pierce, Deossijy, supra note 19, at 85-86.
338. Christensen v. Harris County, Texas, 529 U.S. 576, 589-91 (2000) (Scalia, J., dissenting).
339. 127 S. Ct. 2339,2349 (2007).
340. See supra notes 77-78 and accompanying text.
341. 533 U.S. 218 (2001).
342. Id. at 221.
343. Id. at 227-31.
344. Id. at 229.
345. Id. at 230.
346. Id. at 230-31.
347. Id. at 231-32. Justice Souter summarized the Court's holding near the outset of his opinion: We hold that administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. Delegation of such authority may be shown in a variety of ways, as by an agency's power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent. Id. at 226-27. Only a few years earlier, the Court had held that Customs regulations were entitled to Chevron deference. See United States v. Haggar Apparel Co., 526 U.S. 380 (1999).
348. Id. at 234-35. The Court observed, but did not decide, "[fjhere is room at least to raise a Skidmore claim here, where the regulatory scheme is highly detailed, and Customs can bring the benefit of specialized experience to bear on the subtle questions in this case ⋯." Id. at 235.
349. Id. at 236.
350. Justice Scalia's lengthy dissent warned that the Court's decision might prove to be "one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action," and a "bad" one in his view. Id. at 261 (Scalia, J., dissenting). He premised one aspect of his analysis on a concern obviated by the Court's subsequent decision in National Cable & Telecommunications Ass'n v. Brand XInternet Services, 545 U.S. 967 (2005). Justice Scalia opined that "[w]hat a court says is the law after according Skidmore deference will be the law forever, beyond the power of the agency to change even through rulemaking." Id. at 249-50. In Brand X, discussed infra notes 296-315 and accompanying text, the Court rejected that analysis.
351. Id. at 236-37.
352. Id. at 233.
353. See Ronald J. Krotoszynski, Jr., Why Deference?: Implied Delegations, Agency Expertise, and the Misplaced Legacy of Skidmore, 54 ADMIN. L. REV. 735, 738-39 (2002) ("[T]he Supreme Court should reorient the Christensen/Mead rule to reward diligent agencies and punish agencies that attempt, like the Queen of Hearts, to reach ultimate conclusions without process adequate to ensure the reliability of the result."); Ronald M Levin, Mead and the Prospective Exercise of Discretion, 54 ADMIN. L. REV. 771 (2002) ("Mead, the beverage, is by definition fermented, but the ferment over Mead, the judicial decision, has only just begun."); Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards, 54 ADMIN. L. REV. 807, 809 (2002) (the majority and dissent in Mead "were mistaken in seeking to define the domain of Chevron with anything other than a meta-rule."); Russell L. Weaver, The Undervalued Nonlegislative Rule, 54 ADMrN. L. REV. 871, 880 (2002) ("The Christensen-Mead dual deference approach ⋯ deprives non-legislative rules of a valuable function in the regulatory process, and accordingly denies regulated entities the ability to gain more definitive guidance regarding the meaning of regulatory provisions."). See also Adrian Vermeule, Introduction: Mead in the Trenches, 71 GEO. WASH. L. REV. 347, 351 (2003).
354. Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 VAND. L. REV. 1443, 1491 (2005).
355. 535 U.S. 212,217,222(2002).
356. Id. at 220.
357. Id.
358. 545 U.S. 967 (2005).
359. Brief of Federal Petitioners at 39, Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005) (Nos. 04-277, 04-281).
360. Id. at 40-41. The United States distinguished Neal v. United States, 516 U.S. 284 (1996), by suggesting that the interpretation at issue there was the only permissible interpretation of that statute- effectively an interpretation rendered under a Chevron step one analysis. Id. The Cable-Industry petitioners argued that stare decisis would not trump Chevron deference, although it believed that the Court did not need to reach that issue. Brief of Cable-Industry Petitioners at 16, 30, Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005) (Nos. 04-277, 04-281).
361. Petitioners argued that the Court's opinion in Maslin Industries U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116 (1990), only required adherence to a prior interpretation where the statutory language is clear, Id. at 30-31, and they referred the Court to the following law review articles for guidance: Kenneth A. Bamberger, Provisional Precedent: Protecting Flexibility in Administrative Policymaking, 11 N.Y.U. L. REV. 1272 (2002);
362. Richard W. Murphy, A "New" Counter-Maxbuxy: Reconciling Skidmore Deference and Agency Interpretative Freedom, 56 ADMIN. L. REV. 1 (2004);
363. Richard J. Pierce, Jr., Reconciling Chevron and Stare Decisis, 85 GEO. L. J. 2225 (1997);
364. Greg D. Polsky, Can Treasury Overrule the Supreme Court, 84 B.U. L. REV. 185 (2004);
365. Russell L. Weaver, The Emperor Has No Clothes: Christensen, Mead and Dual Deference Standards, 54 ADMIN. L. REV. 173 (2002). Id. at 32-33.
366. For an insightful note on Brand X, see Doug Geyser, Courts Still "Say What the Law Is ": Explaining the Functions of the Judiciary and Agencies After Brand X, 106 COLUM. L. REV. 2129 (2006).
367. Brand X, 545 U.S. at 997-1003.
368. Id. at 980-82.
369. Id.
370. Id. at 967, 982. "Only a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction." Id. at 982-83; See also id. at 985 ("Before a judicial construction of a statute, whether contained in a precedent or not, may trump an agency's, the court must hold that the statute unambiguously requires the court's construction."). Justice Thomas agreed that Neal was inapposite, as it involved unambiguous statutory language. Id. at 984. This appears consistent with ending the inquiry at step one of Chevron, when a court initially must determine whether the agency's interpretation is clearly right or clearly wrong-perhaps another way of stating that the language is not ambiguous. See Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004) (describing interpretation as "clearly wrong" and that contained in Edelman v. Lynchburg College, 535 U.S. 106 (2002) as "clearly right").
371. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005).
372. Id. at 1003-20.
373. Id. at 1005 (Scalia, J., dissenting).
374. Id. at 1014-15 (Scalia, J., dissenting). Writing for a majority in Riegel v. Medtronic, Inc., 128 S. Ct. 999, 1009 (2008), Justice Scalia would have applied Skidmore deference to an agency interpretation contained in an amicus brief, albeit with the level of deference reduced by a change in interpretation.
375. Brand X, 545 U.S. at 1014-20 (Scalia, J., dissenting).
376. Id. at 1003-05 (Breyer, J., concurring).
377. Id. at 1004. In Barnhart v. Walton, 535 U.S. 212, 217-22 (2002), Justice Breyer examined whether an agency's construction of a statute (in its regulation) was permissible, under Chevron step two. In concluding that it was, he relied upon earlier agency guidance documents illustrating that the interpretation was longstanding. Id. at 219-21. He added that merely because the prior interpretation did not occur following notice and comment "does not automatically deprive that interpretation of the judicial deference otherwise its due," citing Chevron and then invoking Mead. Id. at 221-22. Elsewhere, Justice Breyer elaborates on his approach toward agency deference, explaining that deference ought to be governed by a court's judgment about whether and to what degree it can assume that a reasonable legislator intended that an agency could interpret an ambiguous term and through what means. STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRACTIC CONSTITUTION 85,104-08 (2005). Some lower courts, for instance, apply Chevron deference when they conclude that Congress expressly delegated to the agency the authority to render the particular type of agency decision. E.g., Pharm. Research and Mfrs. v. Thompson, 362 F.3d 817, 821-22 (D.C. Cir. 2004) (concluding that Chevron deference was applicable to Secretary of the United States Dept. of Health and Human Services' interpretation of the Medicad Act); Hospital Corp. of Am. v. Comm. of Internal Revenue, 348 F.3d 136 (6th Cir. 2003) (finding that Chevron deference applied to regulation issued without notice and comment); Schneider v. Feinberg, 345 F.3d 135 (2d Cir. 2003) (granting Chevron deference to tables not published along with a duly published regulation); see also Tualatin Valley Builders Supply, Inc. v. United States, 522 F.3d 937, 944-48 (9th Cir. 2008) (O'Scannlain, concurring) (urging Chevron deference for IRS revenue procedure).
378. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 1014-18 (2005) (Scalia, J., dissenting).
379. Id. at 1016-17.
380. Id. at 1017.
381. Id. According to Justice Scalia, executive agencies may not overturn or disregard decisions rendered by Article III courts. Id. "That is what today's decision effectively allows. Even when the agency itself is party to the case in which the Court construes a statute, the agency will be able to disregard that construction and seek Chevron deference for its construction next time around." Id.
382. Id. at 1019.
383. De La Mota v. U.S. Dep't of Educ, 412 F.3d 71 (2d Cir. 2005).
384. Id. at 78.
385. Id. at 75-76, 78.
386. Id. at 74, 77.
387. 371 F.3d 68, 80 (2d Cir. 2004).
388. De La Mota, 412 F.3d at 79.
389. Id.
390. Id. at 79-82.
391. see id. at 80.
392. Id.
393. Id. The Second Circuit, for instance, refused to afford Chevron deference to an administrative law judge's interpretation, where the judge lacked delegated authority to issue binding decisions. Lin v. U.S. Dep't of Justice, 416 F.3d 184 (2d Cir. 2005). The court rejected the government's argument that the immigration judge's decision was a binding rule, carrying the force of law: "[t]here is, in sum, no reason to believe that an IJ's summarily affirmed decision [by the Board of Immigration Appeals] contains the sort of authoritative and considered statutory construction that Chevron deference was designed to honor." Id. at 191. The court further avoided Skidmore deference by concluding that the decision was not persuasive. Cf. Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296 (2d Cir. 2007) (en banc) (on appeal after its remand, court addressed applying Chevron deference to the Board of Immigration Appeals subsequent decision).
394. De La Mota v. U.S. Dep't of Educ, 412 F.3d 71, 80 (2d Cir. 2005). The court also concluded that the interpretation neither had "validity" nor the "power to persuade," additional elements for receiving Skidmore deference. Here, the court observed that the Department labeled its interpretation as "advisory" only, and as a tentative interpretation it would not have any power to persuade. Id. at 81-82 ("We are especially disinclined to defer to an agency when it does not purport to speak authoritatively.").
395. 546 U.S. 243 (2006).
396. Id. at 249.
397. Dispensing of Controlled Substances to Assist Suicide, 66 Fed. Reg. 56607-08 (Nov. 9, 2001). The district court declined to address the procedural issues associated with the notice of the interpretive rule, but observed that it lacked the indicia of process employed by another interpretive rule that the government had furnished the court. Oregon v. Ashcroft, 192 F. Supp. 2d 1077, 1084 n.9 (D. Or. 2002).
398. 546 U.S. at 253.
399. The government argued before district court Judge Robert E. Jones that jurisdiction to review the Attorney General's Interpretative Rule existed under 21 U.S.C. § 877, providing the Court of Appeals with the exclusive jurisdiction over "final determinations, findings, and conclusions of the Attorney General" made under the CSA. Oregon v. Ashcroft, 192 F. Supp. 2d at 1085. The court admitted that the issue was difficult, but nonetheless concluded that the Interpretative Rule was not "final," and therefore the court could exercise subject matter jurisdiction-but, if jurisdiction was wanting, he would (as a precautionary matter) approve a transfer to the appellate court pursuant to 28 U.S.C. § 1631. Id. at 1085-87. Judge Jones' concerns proved prescient, as the Ninth Circuit concluded that the lower court lacked subject matter jurisdiction, and commenting on Judge Jones' well-reasoned opinion, approved the transfer. Oregon v. Ashcroft, 368 F.3d 1118, 1120 n. 1 (9th Cir. 2004).
400. Gonzales v. Oregon, 546 U.S. at 256-58.
401. Id.
402. Id. at 256.
403. Id. at 244.
404. Id. at 259. Justice Kennedy observed that one element of the Attorney General's authority to adopt regulations on the scheduling of controlled substances required following the APA procedures for rulemaking, which was not done. Id. at 259-61. The dissent opined that the Attorney General issued his memorandum as an interpretative rule, exempted from notice-and-comment rulemaking. Id. at 281 (Scalia, J., dissenting).
405. Id. at 259-61.
406. Id. at 268-69. Dissenting, Justice Scalia (joined by Justice Thomas and the Chief Justice) questioned the efficacy of the anti-parroting cannon articulated by Justice Kennedy, and opined that Attorney General Ashcroft's memorandum was entitled to Auer deference or, at the very least, Chevron deference. Id. at 275-99 (Scalia, J., dissenting).
407. See supra notes 279-295 and accompanying text.
408. In an unanimous opinion, the Court provided its modern gloss on Chevron, stating: [T]he ultimate question is whether Congress would have intended, and expected, courts to treat an agency's rule, regulation, application of a statute, or other agency action as within, or outside, its delegation to the agency of "gap-filling" authority. Where an agency rule sets forth important individual rights and duties, where the agency focuses fully and directly upon the issue, where the agency uses full notice-and-comment procedures to promulgate a rule, where the resulting rule falls within the statutory grant of authority, and where the rule itself is reasonable, then a court ordinarily assumes that Congress intended it to defer to the agency's determination. Long Island Care at Home Ltd. v. Coke, 127 S.Ct. 2339,2350-51 (2007).
409. 475 F.3d 1136 (9th Cir. 2007).
410. Id. at 1140-45.
411. Id. at 1141-42. The heading to section 4(h) of the Act refers to "Agency guidelines." Congress clearly understood the difference between guidelines and rulemakings;in the very next section of the Act it included in the heading "Submission to State agency of justification for regulations . ⋯" 16 U.S.C. §§ 1533(h),(i)(2006).
412. Nw. Ecosystem Alliance, 475 F.3d at 1143-45.
413. The Meaning of "In Danger of Extinction Throughout Allor a Significant Portion of its Range", Solicitor General Opinion M-37013, (Feb. 23, 2007), available at http://www.doi.gov/solicitor/ opinions.html.
414. Binding Nature of Solicitor's M-Opinions on the Office of Hearings and Appeals, Solicitor General Opinion M-3703, (Jan. 18, 2001), available at http://www.doi.gov/solicitor/opinions.html.
415. 128 S. Ct. 1147 (2008). In Federal Express Corp., the Court again confronted how to treat an agency's interpretation of a statutory term parroted in the regulation, but it artfully avoided the issue by reasoning that the agency's interpretation was reasonable under Skidmore deference (thus avoiding the need to address Auer deference). Id. at 1156, 1158. Eskridge and Baer explain that Seminole Rock (or Auer) deference is only sporadically invoked, and they note the problem, identified in Justice Thomas's dissent in Thomas Jefferson University v. Shalala, 512 U.S. 504, 525 (1994) (Thomas, J., dissenting), of potentially encouraging agencies to develop vague regulations only to receive heightened deference. See Eskridge & Baer, supra note 258, at 1104.
416. This topic is widely discussed. See, e.g., Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633 (2000); Cynthia R. Farina, Undoing the New Deal Through the New Presidentialism, 22 HARV. J.L. & PUB. POL'Y 227 (1998);
417. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992);
418. Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 916 (1988);
419. Richard J. Pierce, Jr., The Role of Constitutional and Political Theory in Administrative Law, 64 TEX. L. REV. 469 (1985) (arguing for increased Presidential control);
420. Henry P. Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1 (1983). In her thoughtful article advocating greater Presidential involvement, Elena Kagan expresses the likely dominant philosophy of "making the regulatory activity of the executive branch agencies more and more an extension of the President's own policy and political agenda." Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2248 (2001). But cf. Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106 COLUM. L. REV. 263 (2006) (asserting that the Executive cannot exercise the same interpretive powers as agencies unless Congress has specifically delegated the authority to the President);
421. Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421 (1987) (although favoring increased Presidential control, arguing for enhanced commitment of checks and balances).
422. See also Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 ADMIN. L. REV. 501 (2005);
423. Nick Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085 (2002);
424. Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 DUKE L. J. 963 (2001);
425. Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 WM. & MARY L. REV. 827 (1991);
426. Harold H. Bruff, Presidential Management of Agency Rulemaking, 57 GEO. WASH. L. REV. 533 (1989);
427. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989);
428. Jerry L. Mashaw, As If Republican Interpretation, 97 YALE L. J. 1685 (1988).
429. The Energy Independence and Security Act of 2007, Pub. L. No. 100-140, § 433(d), 121 Stat. 1492, 1614(2007).
430. Agencies undoubtedly are aware of Chevron deference. See, e.g., E. Donald Elliott, Chevron Matters: How the Chevron Doctrine Redefined the Roles of Congress, Courts and Agencies in Environmental Law, 16 VILL. ENVTL. L. J. 1 (2005).
431. Fed. Express Corp. v. Holowecki, 128 S.Ct. 1147, 1156 (2008).
432. See supra notes 77-78 and accompanying text.
433. Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L. J. 969, 1030-31 (1992).
434. Thomas Merrill further suggests that "Congress contemplate[s] courts would always apply independent judgment on questions of law, reserving deference for administrative findings of fact or determination of policy." Id. at 995. I would suggest that the modern era of legislative practice may be quite different, with savvy legislators and sophisticated lobbyists, coupled with active agency involvement in the development of new legislation, all of whom are acutely aware of the deference afforded executive agencies absent clear congressional directives. This explains why some modern environmental or energy legislation, unlike the broad statutes passed during the late 1960s and 1970s, are considerably more detailed and occasionally appear to reflect congressional micromanagement. The classic example is the detailed Clean Air Act Amendments of 1990. Pub. L. No. 101-549, 104 Stat. 2399 (codified as amended in scattered sections of 42 U.S.C.). In 1991, a congressional employee aptly observed that, "[I]f the courts continue to frustrate the intent of those who write the laws by finding discretion even where none was intended, it should not surprise anyone to find lawmakers writing new laws that are even more prescriptive and that state with greater clarity the limits of EPA's discretion." Steven Shimberg, Checks and Balance: Limitations on the Power of Congressional Oversight, 54 LAW & CONTEMP. PROBS. 241, 247 (1991). For instance, after the Eleventh Circuit issued a decision rejecting a decision by the NPS on the use of motor vehicles in the Cumberland Island, GA, wilderness area, Wilderness Watch and Public Employees for Environmental Responsibility v. Mainella, 375 F.3d 1085 (11th Cir. 2004), Congress passed an appropriations rider responding to the decision and effectively reinstating aspects of the NPS's approach by excluding certain areas from the wilderness category. Consolidated Appropriations Act, 2005, Pub. L. No. 447, § 145, 118 Stat. 2809, 3072-72 (codified as amended in scattered sections of 1 U.S.C.).
435. See generally R. Bryant McCulley, Note, The Proof is in the Policy: The Bush Administration, Nonpoint Source Pollution, and EPA's Final TMDL Rule, 59 WASH. & LEE L. REV. 237 (2002) (describing how EPA and Congress squared off over the implementation of the agency's rules for establishing total maximum daily loads under the CWA, with Congress passing a rider prohibiting the implementation of the rule but only to have the agency sign the rule before the effective date of the congressional action).
436. Since 1994, Congress, for instance, has imposed a moratorium on the expenditure of funds to process or accept applications for patents for mining or mill sites. See, e.g., Department of the Interior and Related Agencies Appropriations Act of 1995, Pub. L. No. 103-332, 108 Stat. 2499, 2519 (codified as amended in scattered sections of 43 U.S.C.). See generally John D. Leshy, Mining Law Reform Redux, Once More, 42 NAT. RES. L. J. 461 (2002). Similarly, when the Republican Party captured the majority of Congress in 1994, it eliminated funding for the USFWS's listing of species under the ESA. ROBIN KUNDIS CAIG, ENVIRONMENTAL LAW IN CONTEXT 396-97 (2005). The listing moratorium prompted the Clinton Administration to issue a policy document, the Petition Management Guidance, to address how the agency would review listing petitions. Id. at 397-98. Yet, even though a court subsequently found the listing guidance inconsistent with the Act, Center for Biological Diversity v. Norton, 254 F.3d 833, 836 (9th Cir. 2001), the agency continued to argue that it could rely on the document. Such reliance became misplaced, however, after one court concluded that the guidance document had not been issued pursuant to the rulemaking requirements. See Colorado River Cutthroat Trout v. Kempthorne, 448 F. Supp. 2d 170, 177 (D.D.C. 2006) (noting that the court in Am. Lands Alliance v. Norton, 2004 WL 3246687 (D.D.C. June 2, 2004) had issued nationwide injunction against use of the guidance)).
437. See Southern Utah Wilderness Alliance v. Bureau of Land Mgmt, 425 F.3d 735, 759-61 (10th Cir. 2005) (explaining that interpretation regarding R.S. 2477 incorporated into a proposed rule, with Congress blocking implementation of rule with an appropriations rider, and court nevertheless afforded Mead deference to that interpretation).
438. For a discussion about the utility of congressional oversight hearings as an effective tool, see Richard J. Lazarus, The Neglected Question of Congressional Oversight of EPA: Quis Custodiet Custodes (Who Shall Watch the Watchers Themselves)?, 54 LAW & CONTEMP. PROBS. 205 (1991).
439. Fed. Express Corp. v. Holowecki, 128 S.Ct. 1147, 1158 (2008).
440. Memorandum from Stephen L. Johnson, Administrator, to Regional Administrators, EPA's Interpretation of Regulations that Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Program, Dec. 18, 2008. Notice of Issuance of the Administrator's Interpretation, 73 Fed. Reg. 80300 (Dec. 31, 2008) (noticing the availability of the document and providing an electronic link for access to the memorandum). Senator Barbara Boxer (D-Calif.) called Administrator Johnson's action "illegal" and requested that it be withdrawn, See http://epw.senate.gov/public/index. cfm?FuseAction=Majority.PressReleases&ContentRecord-id=5fflfa60-802a-23ad- 48f7-70e4f829d9a5 &Region-id=&Issue-id= (last visited Jan. 23, 2009), while others have threatened to challenge the document in court. See Sierra Club Press Release, Jan. 15, 2009, available at http://action.sierraclub.org/site/MessageViewer?em-id=86161.0. As is true with this memorandum, agencies now generally publish in the federal register notice of the availability of guidance documents and such documents are typically available through easy internet searches. And sometimes an agency allows comments on a draft document, and other times it does not, but it is not clear that merely by affording an opportunity for comment on a draft that courts should provide a different level of deference. Cf. Stephen M. Johnson, Good Guidance, Good Grief, 72 Mo. L. REV. 695 (2007);
441. Nina A. Mendelson, Regulatory Beneficiaries and Information Agency Policymaking, 92 CORNELL L. REV. 397 (2007); Paul R. Noe & John D. Graham, Due Process and Management for Guidance Documents: Good Governance Long Overdue, 25 YALE J. ON REG. 103 (2008).
442. See http://www.doi.gov/solicitor/opinions.html (the Bush administration Solicitor opinions M-37019 to M-37023 were all released to the public on the internet only shortly after the Obama Administration was sworn in).