Deference and dialogue in administrative law

Columbia Law Review

Volumn 111, Issue 8, 2011, Pages 1722-1787

  Meazell, Emily Hammond ^a  

^a UNIVERSITY OF OKLAHOMA   (United States)

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EID: 84155178206     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (471)

1. Endangered and Threatened Wildlife and Plants; Proposed Rule to List the Flat-tailed Horned Lizard as Threatened, 58 Fed. Reg. 62,624, 62,624 (proposed Nov. 29, 1993) ("The Service [took] this action because of documented and anticipated population declines.").
2. infra notes 139-190 and accompanying text (describing details of lizard case family).
3. Most scholars trace this literature to the classic.
4. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962).
5. Whose arguments for judicial minimalism were grounded on a discomfort with the courts' countermajoritarian role. Many scholars have commented thoughtfully on this issue.
6. Dan T. Coenen, A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 Wm. & Mary L. Rev. 1575, 1587 (2001) Hereinafter Coenen, Second-Look Rules, (presenting comprehensive typology of dialogue-enhancing rules).
7. Dan T. Coenen, The Pros and Cons of Politically Reversible "Semisubstantive" Constitutional Rules, 77 Fordham L. Rev. 2835, 2842 (2009) [hereinafter Coenen, Pros and Cons] (arguing in favor of dialogue-enhancing rules).
8. Ruth Colker & James J. Brudney, Dissing Congress, 100 Mich. L. Rev. 80, 85-86 (2001) (criticizing findings-based dialogic rules).
9. Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 Yale L.J. 153, 176-215 (2002) (providing historical account of concerns regarding countermajoritarian difficulty).
10. Neal Kumar Katyal, Judges as Advicegivers, 50 Stan. L. Rev. 1709, 1710 (1998) (arguing courts ought to offer advice and thereby enhance dialogue).
11. Cass R. Sunstein, The Supreme Court, 1995 Term-Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 81-82 (1996) (describing democracy-forcing potential of dialogic rules).
12. A note on terminology: The word "dialogue" can carry various meanings. At its most straightforward, dialogue simply refers to "a conversation carried on between two or more persons." Oxford English Dictionary 601 (2d ed. 1989). More normatively, it refers to a process of learning and understanding that enables deliberation toward a common end.
13. Nat'l Coal. for Dialogue & Deliberation, Resource Center: What Are Dialogue & Deliberation?, http://www.ncdd.org/rc/what-are-dd (on file with the Columbia Law Review) (last visited June 21, 2011) (proposing similar definition).
14. Todd S. Aagaard, Factual Premises of Statutory Interpretation in Agency Review Cases, 77 Geo. Wash. L. Rev. 366, 405 (2009)
15. "But judicial review is better understood, perhaps, as part of an ongoing iterative process through which policy decisions emerge from a cycle of agencycourt interactions.". To maintain consistency, I use the word "dialogue" in its normative sense. Further, a single agency rule and judicial opinion could be considered dialogic, within either meaning presented above. This Article focuses on serial litigation. In other words, it considers only those agency actions that underwent judicial review more than once. Cf. Aagaard, supra, at 405 n.202 (noting scholarly literature does not make clear whether it refers to dialogue in single case, or in series of cases). Of course, serial litigation is not necessarily dialogic in the normative sense I adopt here. Thus, I refer to "case families," "serial litigation," "iterative review," and "communications" to refer to sets of cases involving multiple reviews of agency action; where appropriate, I further elaborate the extent to which such back-and-forth was dialogic.
16. Harry T. Edwards, Collegiality and Decision Making on the D.C. Circuit, 84 Va. L. Rev. 1335, 1346 (1998) ("The existence of such remands without vacation underscores the complexity of the review process, which is in some ways a dialogue between the court and the agency.")
17. Ronald M. Levin, "Vacation" at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke L.J. 291, 371 (2003)
18. Hereinafter Levin, Vacationm (arguing remands without vacaturs help courts and agencies serve as "'collaborative instrumentalities of justice'" (quoting United States v. Morgan (Morgan IV), 313 U.S. 409, 422 (1941))).
19. Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479, 530 (2010)
20. Arguing administrative proceedings "may then form an occasion for beneficial dialogue with the courts-and perhaps with Congress and the President-about how the Constitution itself should be understood".
21. 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, 439 & n.274 (2000) (arguing for return to "partnership" model of agency-court relationship and collecting sources).
22. Frank B. Cross, Shattering the Fragile Case for Judicial Review of Rulemaking, 85 Va. L. Rev. 1243, 1306-1314 (1999)
23. Arguing dialogic considerations do not justify judicial review. In contrast to Professor Cross, my analysis takes for granted that there is at least some role for courts in reviewing agency actions.
24. Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 939 (D.C. Cir. 2004) (per curiam) ("The challenged rulemaking is now in its third decade.").
25. Levin, Vacation, supra note 5, at 298-99 ("Even a relatively minor error in the agency's reasoning, or a procedural error concerning a single issue, can lead to nullification of a rule that underpins a major regulatory program....").
26. After all, two case families-the Chenery saga and the Vermont Yankee line-gave rise to some of administrative law's most important principles. In chronological order, see SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 88 (1943) (holding courts review only the reasoning given by agencies at the time they made their decisions); SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 203 (1947) (holding agencies' choices among procedures are within their sound discretion); Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543-546 (1978) (holding courts may not impose procedures on agencies beyond those found in the APA); Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983) (stating courts must be at their most deferential when agencies act at frontiers of science).
27. In addition to the cases discussed infra Part II, see, e.g., the Boundary Waters and Cuddy Mountain case families, in chronological order, Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1124 (8th Cir. 1999) (rejecting agency interpretation of Boundary Waters Canoe Area Wilderness Act); Friends of the Boundary Waters Wilderness v. Bosworth, 437 F.3d 815, 823-24 (8th Cir. 2006) (upholding agency's calculation of lake use where agency corrected error made apparent by previous ruling, but holding methodology arbitrary and capricious); Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1382 (9th Cir. 1998) (enjoining timber sale that violated National Forest Management Act and NEPA); Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1061 (9th Cir. 2002) (remanding to district court for consideration of NFMA merits and upholding grant of summary judgment to Forest Service in NEPA claim). To this Article's claim that serial litigation arises particularly in risk regulation, there are a few notable exceptions, such as the Chenery I and Chenery II cases. For a case family involving stockyard rates set by the Secretary of Agriculture, which made it to the Supreme Court four times, see generally, in chronological order, the Morgan case family, Morgan v. United States (Morgan I), 298 U.S. 468 (1936); Morgan v. United States (Morgan II), 304 U.S. 1 (1938); United States v. Morgan (Morgan III), 307 U.S. 183 (1939); Morgan IV, 313 U.S. 409. Indeed, ratemaking issues seem to prompt serial litigation; see, e.g., the Time Warner and Illinois Bell case families, in chronological order, Time Warner Entm't Co. v. FCC (Time Warner I), 56 F.3d 151, 162 (D.C. Cir. 1995) (vacating portion of ratemaking rule for cable television); Time Warner Entm't Co. v. FCC (Time Warner II), 144 F.3d 75, 82 (D.C. Cir. 1998) (partially vacating subsequent rule); Ill. Bell Tel. Co. v. FCC, 911 F.2d 776, 786 (D.C. Cir. 1990) (remanding rules related to interstate rate base for telecommunications carriers); Ill. Bell Tel. Co. v. FCC, 988 F.2d 1254, 1264 (D.C. Cir. 1993) (upholding challenge to agency action on remand). This compares with the Tankers case family. See, in chronological order, Indep. U.S. Tankers Owners Comm. v. Dole, 809 F.2d 847, 851-52 (D.C. Cir 1987) (vacating rule under Merchant Marine Act involving paybacks of subsidies for tanker vessels); Indep. U.S. Tanker Owners Comm. v. Skinner, 884 F.2d 587, 588 (D.C. Cir. 1987) (rejecting subsequent challenge). For an extensive look at an iterative process of judicial challenges and agency adjudications involving the electric utility industry.
28. Jim Rossi, Redeeming Judicial Review: The Hard Look Doctrine and Federal Regulatory Efforts to Restructure the Electric Utility Industry, 1994 Wis. L. Rev. 763.
29. At their hearts, many of these subjects also implicate considerations of regulatory design and the challenges of regulating complex issues over long periods of time.
30. Robin Kundis Craig, The Stevens/Scalia Principle and Why It Matters: Statutory Conversations and a Cultural Critical Critique of the Strict Plain Meaning Approach, 79 Tul. L. Rev. 955, 1008-1013+1022-1034 (2005) (considering statutory interpretation over evolution of longstanding regulatory schemes).
31. J.B. Ruhl & James Salzman, Climate Change, Dead Zones, and Massive Problems in the Administrative State: A Guide for Whittling Away, 98 Calif. L. Rev. 59, 79-92+98-108 (2010) (presenting typology of "massive" regulatory problems and suggestions for regulatory design).
32. Emily Hammond Meazell, Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science, 109 Mich. L. Rev. 733, 749-750 (2011) [hereinafter Meazell, Super Deference].
33. Peter L. Strauss, Legislation That Isn't-Attending to Rulemaking's "Democracy Deficit," 98 Calif. L. Rev. 1351, 1357 (2010) ("The legitimacy of delegated discretionary authority, that is, is tied directly to the possibility of judicial review for the rationality of its exercise.")
34. Kevin M. Stack, The Constitutional Foundations of Chenery, 116 Yale L.J. 952, 1000 (2007) ("[P]art of the tradeoff for Congress's choice to delegate authority is that the recipient of that power must be more articulate about the grounds for its action than Congress would be.").
35. Chenery I, 318 U.S. at 87 ("The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.").
36. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) ("[T]he court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment."), abrogated by Califano v. Sanders, 430 U.S. 99 (1977).
37. Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983); see also Chevron U.S.A. Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837, 863 (1984) (noting agency makes interpretations "in the context of implementing policy decisions in a technical and complex arena").
38. Chevron, 467 U.S. at 865 ("While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices....").
39. Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1764 (2007) [hereinafter Bressman, Procedures as Politics] (describing presidential control model of administrative law as reflected by increasing judicial deference to agency decisions, the most prominent example being Chevron).
40. Nina A. Mendelson, Disclosing "Political" Oversight of Agency Decision Making, 108 Mich. L. Rev. 1127, 1159-1163 (2010) (arguing for greater transparency where agency decisions are based on executive policy).
41. Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 Tex. L. Rev. 525, 528 (1997) ("[C]ontinuing scrutiny of reviewing courts under the hard look doctrine caused the rulemaking process to 'ossify' to a disturbing degree.").
42. Jordan, supra note 5, at 396-97 (finding little support for ossification hypothesis in study of D.C. Circuit decisions between 1985 and 1995).
43. Mark Seidenfeld, Why Agencies Act: A Reassessment of the Ossification Critique of Judicial Review, 70 Ohio St. L.J. 251, 320-321 (2009) (criticizing ossification hypothesis).
44. Donald Elliot, former general counsel to the EPA, is credited with coining the term.
45. E. Donald Elliott, Alan Charles Raul, Richard J.Jr. Pierce, Thomas O. McGarity & Wendy E. Wagner, Science, Agencies, and the Courts: Is Three a Crowd?, 31 Envtl. L. Rep. 10125+10134 (2001) (comments of Thomas O. McGarity).
46. Meazell, Super Deference, supra note 11 (lodging this criticism).
47. For a sampling of representative sources, see supra note 3.
48. For a comprehensive account of the merits debate.
49. Coenen, Pros and Cons, supra note 3, at 2853-2889.
50. Although this Article's approach focuses on the official written documents of each institution, it acknowledges that, at least when an agency acts, informal rulemaking invites many informal discussions and debates among a variety of stakeholders. See Cross, supra note 5, at 1312 (emphasizing that on-paper processes for rulemaking do not comprehensively reflect agencies' interactions with interested parties).
51. Wendy E. Wagner, Katherine Barnes & Lisa Peters, Rulemaking in the Shade: An Empirical Study of EPA's Air Toxic Emission Standards, 63 Admin. L. Rev. 99, 124-126 (2011) [hereinafter Wagner et al., Shade] (documenting empirical study showing domination of industry group contacts in air toxics rule development).
52. This Article focuses on the formal written explanations because those reflect the considered, scrutinized, edited versions of each institution's reasoning and because those formal explanations are directed in part at the opposing institutions. Relatedly, dialogue is not limited to two parties. Congress, the President, the public, attorneys for the parties, and a variety of other stakeholders can join the conversation at various stages of iterative review. While a comprehensive account of those other discussants is beyond the scope of this Article, their presence is implicit in my conception of administrative law values.
53. Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 Duke L.J. 984, 1045.
54. infra text accompanying notes 89-90 (discussing study).
55. See 5 U.S.C. §§ 551-559, 701-706 (2006) (describing procedures for agency action and providing for judicial review of such action).
56. Constitutional defects are beyond the scope of this Article. Cf. id. § 706(2)(B) (stating agency actions may be set aside if found to be "contrary to constitutional right, power, privilege, or immunity").
57. Id. § 706(1).
58. Oil, Chem. & Atomic Workers Union v. OSHA, 145 F.3d 120, 123-24 (3d Cir. 1998) (denying petition for order to compel OSHA to cease delay in hexavalent chromium rulemaking).
59. id. at 123-24 (expressing unwillingness to disturb "quintessential discretion of the Secretary of Labor to allocate OSHA's resources and set its priorities").
60. Pub. Citizen Health Res. Grp. v. OSHA, 823 F.2d 626, 629 (D.C. Cir. 1987) ("OSHA not only possesses enormous technical expertise we lack, but must juggle competing rulemaking demands on its limited scientific and legal staff."). Of course, agencies' abuse of science in this regard has been well documented. Although at times scientific uncertainty may indeed make rulemaking difficult, there are too many incentives-this doctrinal approach included-for agencies to hide their policy decisions "behind a cloak of science."
61. Holly Doremus, Science Plays Defense: Natural Resources Management in the Bush Administration, 32 Ecology L.Q. 249, 253 (2005).
62. Wendy Wagner & Rena Steinzor, Introduction to Rescuing Science from Politics: Regulation and the Distortion of Scientific Truth 1, 1-2 (Wendy Wagner & Rena Steinzor eds., 2006) (describing adverse impact of legal system on scientific integrity).
63. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613, 1617 (1995) ("[A]gencies exaggerate the contributions made by science in setting toxic standards in order to avoid accountability for the underlying policy decisions.").
64. Clean Air Act Amendments of 1970, 42 U.S.C. § 7476 (2006) (requiring EPA to set regulations for hydrocarbons, carbon monoxide, photochemical oxidants, and nitrogen oxides designed to prevent significant deterioration of air quality not later than two years after August 7, 1977).
65. Sierra Club v. Thomas, 658 F. Supp. 165, 175 (N.D. Cal. 1987) ("This case is the most recent instance of the EPA's long-standing unwillingness to comply with the Clean Air Act.").
66. On Congress's approach of pushing environmental responsibility to agencies and setting sometimes unrealistic expectations.
67. Wendy E. Wagner, Congress, Science, and Environmental Policy, 1999 U. Ill. L. Rev. 181.
68. Thomas, 658 F. Supp. at 175 (retaining jurisdiction, setting timeframe, and threatening contempt for noncompliance). Note that deadline suits are a frequent and fruitful tool of public interest groups. See Wagner et al., Shade, supra note 21, at 137 ("[D]eadline suits can be filed with almost no investment of time or effort and almost always lead to success. The only facts in contention, moreover, are whether there is a statutory deadline for a rule and whether the agency has missed that deadline."). Although it may seem that deadline suits lack the capacity to be dialogic-given their focus on timelines rather than substance-some courts take the opportunity to offer dialogic comments on the merits. See infra notes 200-210 and accompanying text (discussing court's signals about nature of science in procedural iteration of Hexavalent Chromium case family).
69. 5 U.S.C. § 706(2)(D) (2006).
70. Id. § 553(c).
71. For a criticism of this practice.
72. Jack M. Beermann & Gary Lawson, Reprocessing Vermont Yankee, 75 Geo. Wash. L. Rev. 856, 894 (2007) (arguing practice turns "the notice of proposed rulemaking into something akin to proposed findings of fact and conclusions of law").
73. Engine Mfrs. Ass'n v. EPA, 20 F.3d 1177, 1181 (D.C. Cir. 1994) ("[A] reasonable explanation for the cost basis for the proposed fees would be one that the concerned public could understand."); Home Box Office v. FCC, 567 F.2d 9, 55 (D.C. Cir. 1977) (requiring "agencies to set out their thinking in notices of proposed rulemaking").
74. Reytblatt v. NRC, 105 F.3d 715, 722 (D.C. Cir. 1997) ("An agency need not address every comment, but it must respond in a reasoned manner to those that raise significant problems.").
75. Gary Lawson, Federal Administrative Law 290 (2009). In addition, agencies' statutory mandates may require more specificity than does the text of the APA. See, e.g., Clean Air Act Amendments of 1977, 42 U.S.C. § 7607(d)(3)(A)-(C) (2006) (mandating statement of basis and purpose include factual data, methodology, and legal interpretations and policy considerations underlying rule).
76. Am. Med. Ass'n v. Reno, 57 F.3d 1129, 1132 (D.C. Cir. 1995) (explaining procedural requirements for notice and comment rulemaking "serve important purposes of agency accountability and reasoned decisionmaking").
77. 5 U.S.C. § 706(2) (2006).
78. Greater Bos. Television Corp. v. FCC, 444 F.2d 841, 850-51 (D.C. Cir. 1970) (using term "reasoned decision-making"). The arbitrary and capricious standard operates as a catch-all, applying to the vast areas of agency policymaking and discretion that fit no other category. See Camp v. Pitts, 411 U.S. 138, 138-40, 142 (1973) (per curiam) (illustrating catch-all approach). By contrast, substantial evidence review is limited to actions governed by the formal procedures set forth in sections 556 and 557 of the APA. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414-15 (1971), abrogated by Califano v. Sanders, 430 U.S. 99 (1977). These distinctions are immaterial for purposes of this Article.
79. Richard J.Jr. Pierce, What Do the Studies of Judicial Review of Agency Actions Mean?, 63 Admin. L. Rev. 77, 81 (2011) (noting that, in many contexts, "the version of the substantial evidence doctrine... is virtually identical to the version of the arbitrary and capricious standard that was the basis for the Court's opinion in State Farm").
80. Motor Vehicles Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
81. Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983).
82. Meazell, Super Deference, supra note 11, at 772 (describing trend toward favoring hard look approach).
83. State Farm, 463 U.S. at 43; Overton Park, 401 U.S. at 416.
84. SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 95 (1943) ("We merely hold that an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.").
85. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (describing applicable standard "[w]hen a court reviews an agency's construction of the statute which it administers"). Interpretations that do not carry the force of law are considered according to Skidmore v. Swift & Co., 323 U.S. 134, 138-40 (1944) (holding agencies are given deference to the extent their reasoning has power to persuade). Interpretations of agencies' own regulations arguably receive more deference than Chevron provides. See Auer v. Robbins, 519 U.S. 452, 461 (1997) (deferring to agency's interpretation of its own regulations unless "'plainly erroneous or inconsistent with the regulation'" (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989))).
86. There may also be a "step zero" involving a determination of whether the agency has acted with the force of law, United States v. Mead Corp., 533 U.S. 218, 226-27, 229 (2001), and whether it has jurisdiction to take the action it has, FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 131-33 (2000).
87. Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 207-211 (2006) (describing step zero).
88. Chevron, 467 U.S. at 842-43.
89. Id. at 843.
90. Lisa Schultz Bressman, Chevron's Mistake, 58 Duke L.J. 549, 585 (2009) ("[T]he effect of each is much the same.").
91. Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 Chi.-Kent L. Rev. 1253, 1296 (1997) (predicting increasing overlap between step two and arbitrariness review).
92. Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 Va. L. Rev. 597, 603-604 (2009) (condensing Chevron into principle that courts must uphold any reasonable agency construction).
93. Not all scholars agree.
94. Kenneth A. Bamberger & Peter L. Strauss, Chevron's Two Steps, 95 Va. L. Rev. 611, 611 (2009) ("The framework for judicial review of administrative interpretations of regulatory statutes set forth in the landmark... decision prescribes two analytic inquiries, and for good reason.").
95. Mark Seidenfeld, Chevron's Foundation, 86 Notre Dame L. Rev. 273, 310-311 (2011) (arguing step two serves Article III function independent of section 706 of APA).
96. Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498, 1505 (2009) ("[The agency's] view governs if it is a reasonable interpretation of the statute-not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts."); Chevron, 467 U.S. at 844 ("[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.").
97. SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 87 (1943) ("The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.").
98. Judges might also send signals to an agency during oral argument. See, e.g., Pub. Citizen Health Research Grp. v. Chao, 314 F.3d 143, 145 (3d Cir. 2002) (commenting that agency rulemaking was apparently "prompted by the displeasure clearly evidenced by the panel during oral argument").
99. Meazell, Super Deference, supra note 11, at 781 (discussing signals courts provide when resolving scientific questions).
100. Chenery I, 318 U.S. at 87-88.
101. Stack, supra note 12, at 958 ("The Chenery principle operates both to bolster the political accountability of the agency's action and to prevent arbitrariness in the agency's exercise of its discretion.").
102. Metzger, supra note 5, at 491 ("When the APA was adopted, arbitrary and capricious was understood to entail the same minimal scrutiny as constitutional rationality review.").
103. Pac. States Box & Basket Co. v. White, 296 U.S. 176, 185 (1935) (quoting Borden's Farm Prods. Co. v. Baldwin, 293 U.S. 194, 209 (1934)).
104. Williamson v. Lee Optical, 348 U.S. 483, 487 (1955) (describing various conclusions legislature "might have" made); United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938) ("[T]he existence of facts supporting the legislative judgment is to be presumed."). With respect to agencies, this approach was consistent with the prevailing model of agency behavior, which conceived of agencies as beneficent technocrats who ought to be trusted to not just implement, but shape policy.
105. James M. Landis, The Administrative Process (1938).
106. On this topic, see Universal Camera Corp. v. NLRB, 340 U.S. 474, 477-84 (1951) (exploring legislative history suggesting APA's judicial review standards were intended to be more searching than minimum rationality review).
107. For an excellent discussion of these changes and how they impacted judicial review of agency actions.
108. Sidney A. Shapiro & Richard E. Levy, Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions, 1987 Duke L.J. 387, 403-439.
109. 332 U.S. 194, 196 (1947); see also Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974) ("[W]e may not supply a reasoned basis for the agency's action that the agency itself has not given.").
110. For example, the Court has held: The [agency] suggests that the arbitrary-and-capricious standard requires no more than the minimum rationality a statute must bear in order to withstand analysis under the Due Process Clause. We do not view as equivalent the presumption of constitutionality afforded legislation drafted by Congress and the presumption of regularity afforded an agency in fulfilling its statutory mandate. Motor Vehicles Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 n.9 (1983). Similarly, in a separate case, a plurality of the Court stated: Our recognition of Congress' need to vest administrative agencies with ample power to assist in the difficult task of governing a vast and complex industrial Nation carries with it the correlative responsibility of the agency to explain the rationale and factual basis for its decision, even though we show respect for the agency's judgment in both. Bowen v. Am. Hosp. Ass'n, 476 U.S. 610, 627 (1986) (plurality opinion).
111. See Strauss, supra note 12, at 1357 ("The legitimacy of delegated discretionary authority, that is, is tied directly to the possibility of judicial review for the rationality of its exercise."); see also Shapiro & Levy, supra note 62, at 440 ("Rationalist review acknowledges the unique constitutional position of agencies outside of the tripartite system of government envisioned by the Framers, and compensates through heightened scrutiny of agency decisions...."); Stack, supra note 12, at 959 ("Chenery provides a structural check for the very presumptions of agency accountability, rationality, and expertise upon which Chevron deference is based.").
112. Glen Staszewski, Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy, 56 Vand. L. Rev. 395, 446 (2003) ("This form of heightened judicial scrutiny enforces the republican ideal of reasoned decisionmaking for every legislative rule adopted through the administrative lawmaking process.").
113. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1823 (2009) (Kennedy, J., concurring) (stating APA's requirements "stem from the administrative agency's unique constitutional position").
114. Meazell, Super Deference, supra note 11, at 757-759 (describing history).
115. Metzger, supra note 5, at 492 (explaining hard look review "reinforces political controls by helping to ensure that Congress and the President are aware of what agencies are doing").
116. Id.
117. Bressman, Procedures as Politics, supra note 16, at 1778.
118. Sierra Club v. Costle, 657 F.2d 298, 410 (D.C. Cir. 1981) ("Cases like this highlight the critical responsibilities Congress has entrusted to the courts....").
119. 5 U.S.C. § 706(2) (2006).
120. Checkosky v. SEC, 23 F.3d 452, 465 (D.C. Cir. 1994) (separate opinion of Silberman, J.) (noting vacatur requires "the agency to initiate another rulemaking proceeding as if it would seek to confront the problem anew" (quoting Indep. U.S. Tanker Owners Comm. v. Dole, 809 F.2d 847, 854 (D.C. Cir. 1987))). Should the action be further challenged in court, it will be reviewed under the same standards described above, and any issues raised in those new proceedings are fair game for new challenges. Id. at 464.
121. SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 95 (1943) ("The cause should therefore be remanded to the Court of Appeals with directions to remand to the Commission for such further proceedings, not inconsistent with this opinion, as may be appropriate."). On remand, the agency reached the same result but used different reasoning; it was upheld on subsequent review. SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 209 (1947); see also Motor Vehicles Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983) (concluding agency failed to supply reasoned analysis and directing court of appeals to remand matter to the agency for further consideration).
122. Checkosky, 23 F.3d at 465. Under these circumstances, and provided the agency does not open up any new matters, subsequent judicial review will be confined to the issues on remand. Cf. West Virginia v. EPA, 362 F.3d 861, 872 (D.C. Cir. 2004) (stating petitioners may not "comment on matters other than those actually at issue, goad the agency into a reply, and then sue on the grounds that the agency had re-opened... the issue" (citing Am. Iron & Steel Inst. v. EPA, 886 F.2d 390, 398 (D.C. Cir. 1989))); Nw. Ind. Tel. Co v. FCC, 872 F.2d 465, 470 (D.C. Cir. 1989) ("It is elementary that where an argument could have been raised on an initial appeal, it is inappropriate to consider that argument on a second appeal following remand.").
123. For a general overview of remand without vacatur.
124. Kristina Daugirdas, Note, Evaluating Remand Without Vacatur: A New Judicial Remedy for Defective Agency Rulemaking, 80 N.Y.U. L. Rev. 278 (2005).
125. Checkosky, 23 F.3d at 491 (Randolph, J., dissenting) ("Setting aside means vacating; no other meaning is apparent."); see also Camp v. Pitts, 411 U.S. 138, 143 (1973) (stating matter must be vacated and remanded and citing Chenery I, which only remanded).
126. Daniel B. Rodriguez, Of Gift Horses and Great Expectations: Remands Without Vacatur in Administrative Law, 36 Ariz. St. L.J. 599, 601 (2004).
127. His premise-that more searching scrutiny is a bad thing-is open to debate.
128. Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 Admin. L. Rev. 753, 761 n.31, 763-765 (2006) (collecting supporters and critics of hard look review).
129. Levin, Vacation, supra note 5, at 361. Professor Levin argues that "[i]t is, in short, an accommodation of the agency's interests, not an invasion of its turf." Id. at 371; see also Checkosky, 23 F.3d at 462 (cautioning that vacation as a matter of course may "alter the role of the judiciary vis-a-vis administrative agencies by forcing courts to decide that the agency's action is either unlawful or lawful on the first pass, even when the judges are unsure as to the answer"); cf. Jordan, supra note 5, at 414 (highlighting example where remand without vacatur helped avoid ossification).
130. Levin, Vacation, supra note 5, at 371 (citing United States v. Morgan (Morgan IV), 313 U.S. 409, 422 (1941)); see also Edwards, supra note 5, at 1346 ("The existence of such remands without vacation underscores the complexity of the review process, which is in some ways a dialogue between the court and the agency.").
131. See infra Part III.C. (examining problematic aspects of dialogue).
132. At one time, it would have been appropriate to add "nonacquiesence" to the list. As documented by Professor Hume, there was a period of time in the 1980s when agencies applied courts' rulings on adjudications only to the particular adjudication challenged, rather than extending it to others raising the same issue.
133. Robert J. Hume, How Courts Impact Federal Administrative Agency Behavior 92-94 (2009).
134. During the same time period, there were also some examples of intracircuit nonacquiesence, where agencies ignored rulings from other circuits. Id. at 96-99. None of the dialogic cases I encountered, however, revealed such blatant nonacquiesence.
135. Schuck & Elliott, supra note 22, at 1045; see also Jordan, supra note 5, at 428-29 (describing settlement following remand in American Iron & Steel Institute v. OSHA, 939 F.2d 975 (D.C. Cir. 1991)).
136. For an example in which OSHA specifically mentioned a settlement in the Federal Register following serial litigation involving airborne lead standards, see, in chronological order, United Steelworkers v. Marshall, 647 F.2d 1189, 1131 (D.C. Cir. 1980) (remanding for reconsideration of technical and economic feasibility findings for airborne lead standards); Occupational Exposure to Lead; Revised Supplemental Statement of Reasons; Amendment of Final Rule, 46 Fed. Reg. 60,758, 60,758 (Dec. 11, 1981) (codified as amended at 29 C.F.R. § 1910.1025(e)(1) & tbl. I) (responding to first remand); Am. Iron & Steel, 939 F.2d at 1010 (upholding remanded rule for all but one industrial sector); Occupational Exposure to Lead, 60 Fed. Reg. 52,856, 52,857-58 (Oct. 11, 1995) (codified as amended at 29 C.F.R. pt. 1910) (noting certain airborne lead standards were reached following settlement with impacted industrial sector). A full exploration of such settlements is beyond the scope of this Article, but I invite readers to share examples of which they might be aware.
137. Hume, supra note 82, at 70-91. 86. Id. at 91.
138. James F. Spriggs, II, Explaining Federal Bureaucratic Compliance with Supreme Court Opinions, 50 Pol. Res. Q. 567, 580 (1997) (finding remands resulted in narrow compliance with Supreme Court opinions in 12.2% of cases sampled).
139. Hume, supra note 82, at 73. 88. Id.; see also id. at 77 ("Respondents tended to describe their relationships with courts as an ongoing conversation, in which both players participated but neither had the final say."). For example, one survey respondent stated, "I see the relationship between courts and agencies as an extended dialogue.... The courts respond and then the argument goes through another iteration. This is a very formal dialogue that takes place over an extended period of time." Id. at 78.
140. Schuck & Elliott, supra note 22, at 1047. As Professors Schuck and Elliott explained, this finding was particularly strong because it was supported by data from lawyers for both petitioners and agencies. Id.
141. Wagner et al., Shade, supra note 21, at 137 (finding 73% of hazardous air pollutant rules were promulgated under court order resulting from a deadline suit).
142. Jordan, supra note 5. 92. See id. at 445 (concluding that even following remands, agencies are normally able to continue implementing their regulatory programs). Professor Jordan's study involved research questions and methodologies different from those of Professors Schuck and Elliott and Professor Hume. Thus, it is difficult to make direct comparisons between the results.
143. Id. at 417 n.120 (describing agency's consideration of new technology on remand).
144. For a discussion of the Mexican Spotted Owl case family, see infra Part II.A.1.
145. Indeed, one of the aims of this Article is to build a conceptual foundation from which to design empirical research in this area.
146. Wagner et al., Shade, supra note 21, at 137.
147. As Professor Wagner and her colleagues surmise, however, public interest groups may not participate as much in the substantive rulemakings themselves. See id. at 138 (speculating "public interest groups are heavily involved in filing deadline suits and then back out of most of the substantive features of rulemakings until the end of the process").
148. For discussions of the Lizard and Hexavalent Chromium case families, see infra Parts II.A.2 and II.B.
149. For an example of a court-imposed timeframe following a substantive challenge, see infra note 152 and accompanying text (discussing Lizard case family). For an example following a procedural challenge, see infra note 210 (discussing Hexavalent Chromium case family).
150. In one example, an agency delayed its response fifteen years. See infra notes 329-334 and accompanying text (discussing NOx-PSD case family).
151. Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884 (codified as amended at 16 U.S.C. §§ 1531-1544 (2006)).
152. Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1590 (codified as amended at 29 U.S.C. §§ 651-678 (2006)).
153. Atomic Energy Act of 1954, Pub. L. No. 703, 68 Stat. 919 (codified as amended at 42 U.S.C. §§ 2161-2166 (2006)).
154. Clean Air Act, Pub. L. No. 88-206, 77 Stat. 392 (1963) (codified as amended at 42 U.S.C. §§ 7401-7671q).
155. For an excellent case family involving Superfund adjudication, see, in chronological order, Tex Tin Corp. v. EPA (Tex Tin I), 935 F.2d 1321, 1324 (D.C. Cir. 1991) (per curiam) (remanding listing on national priorities list); Tex Tin Corp. v. EPA (Tex Tin II), 992 F.2d 353, 356 (D.C. Cir. 1993) (remanding and vacating listing on national priorities list).
156. 16 U.S.C. § 1533.
157. Holly Doremus, The Purposes, Effects, and Future of the Endangered Species Act's Best Available Science Mandate, 34 Envtl. L. 397, 401-405 (2004) [hereinafter Doremus, Best Available] (providing overview of statutory scheme).
158. Doremus, Best Available, supra note 106, at 431 (reporting that a rough search revealed a reversal rate of about 78%).
159. Id. at 402-403.
160. Ctr. for Biological Diversity v. Norton, 240 F. Supp. 2d 1090, 1092 (D. Ariz. 2003) (describing history).
161. Ariz. Cattle Growers' Ass'n v. Kempthorne, 534 F. Supp. 2d 1013, 1017-18 (D. Ariz. 2008) (describing history).
162. Endangered and Threatened Wildlife and Plants; Determination of Critical Habitat for the Mexican Spotted Owl (Final Rule), 60 Fed. Reg. 29,914, 29,914 (June 6, 1995) (codified as amended at 50 C.F.R. pt. 17).
163. Kempthorne, 534 F. Supp. 2d at 1018 (stating proceeding in Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. FWS, CV-95-1258-M (D.N.M.), resulted in remand). This decision was spurred by Catron County Board of Commissioners v. FWS, 75 F.3d 1429, 1436 (10th Cir. 1996), which held that the FWS had to comply with NEPA prior to designating critical habitat for two desert fish.
164. Endangered and Threatened Wildlife and Plants; Revocation of Critical Habitat for the Mexican Spotted Owl, Loach Minnow, and Spikedance, 63 Fed. Reg. 14,378, 14,378 (Mar. 25, 1998) (codified as amended at 50 C.F.R. pt. 17).
165. Kempthorne, 534 F. Supp. 2d at 1018 (describing lack of actions taken after revocation).
166. Center for Biological Diversity v. Norton, 240 F. Supp. 2d 1090, 1091 (D. Ariz. 2003) quotes Southwest Center for Biological Diversity v. Babbitt, CIV 99-519 LFG/LCSACE (D.N.M.), as expressing frustration with "years of delay relating to FWS's compliance obligations."
167. Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Mexican Spotted Owl, 66 Fed. Reg. 8530, 8530 (Feb. 1, 2001) (codified as amended at 50 C.F.R. pt. 17).
168. Id. at 8542-8545.
169. Id. at 8537. In its notice detailing its reasoning, the FWS also described the history of the litigation up to that point without comment. Id. at 8532.
170. Ctr. for Biological Diversity, 240 F. Supp. 2d at 1109.
171. Id. at 1100.
172. Id. at 1100-1103.
173. Id. at 1104-1105.
174. Id. at 1106-1107.
175. Id. at 1109.
176. Id.
177. Id. Later, the FWS sought and obtained an extension of these deadlines. Ariz. Cattle Growers' Ass'n v. Kempthorne, 534 F. Supp. 2d 1013, 1018 (D. Ariz. 2008).
178. Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Mexican Spotted Owl, 69 Fed. Reg. 53,182, 53,182 (Aug. 31, 2004) (codified as amended at 50 C.F.R. pt. 17).
179. Id.
180. Id. at 53+182-198.
181. 606 F.3d 1160 (9th Cir. 2010).
182. Id. at 1162.
183. Id. at 1163-1167.
184. Id. at 1167 ("We reiterate that when an agency is acting within its expertise to make a scientific determination 'a reviewing court must generally be at its most deferential.'" (quoting Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983))).
185. Id. at 1167-1168.
186. Id. at 1169-1170.
187. Id. at 1170 & n.9.
188. id. at 1171 ("This is precisely the sort of decision within the agency's technical expertise that we are not free to second-guess.").
189. For a thoughtful description of a series of cases involving the Northern Spotted Owl in the Pacific Northwest.
190. Eric Biber, Too Many Things to Do: How to Deal with the Dysfunctions of Multiple-Goal Agencies, 33 Harv. Envtl. L. Rev. 1, 55-56 (2009) (arguing ESA battles over Northern Spotted Owl led to significant changes in FWS's culture and management).
191. Endangered and Threatened Wildlife and Plants; Proposed Rule to List the Flat- Tailed Horned Lizard as Threatened, 58 Fed. Reg. 62,624, 62,624 (proposed Nov. 29, 1993), withdrawn, 62 Fed. Reg. 37,852 (July 15, 1997).
192. See 16 U.S.C. § 1533(b)(6)(A) (2006) (setting one-year timeframe for agency to publish decision or extension).
193. Endangered and Threatened Wildlife and Plants; Withdrawal of the Proposed Rule To List the Flat-Tailed Horned Lizard as Threatened, 62 Fed. Reg. 37,852, 37,854 (July 15, 1997) (discussing district court ruling).
194. Id. at 37852.
195. id. at 37854.
196. Id. at 37872.
197. Although the District Court for the Southern District of California granted summary judgment to the agency, the Ninth Circuit reversed. Defenders of Wildlife v. Babbitt, No. 97-CV-2330 TW, 1999 WL 33537981, at*8 (S.D. Cal. June 14, 1999), rev'd sub nom. Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001).
198. 16 U.S.C. § 1532(6) (2006).
199. Norton, 258 F.3d at 1141.
200. The court determined that Chevron deference was not warranted because the FWS had not made any interpretation for purposes of its 1997 withdrawal. Id. at 1145 n.11.
201. Id. at 1145.
202. Id. at 1146.
203. id. at 1145-1146 (discussing areas FWS should have addressed in making its determination).
204. See Endangered and Threatened Wildlife and Plants, Notice of Reinstatement of the 1993 Proposed Listing of the Flat-Tailed Horned Lizard as a Threatened Species and the Reopening of the Comment Period on the Proposed Rule, 66 Fed. Reg. 66,384, 66,384 (proposed Dec. 26, 2001) (describing district court's October 24, 2001 order, which remanded and set timeframe with parties' consent), withdrawn, 68 Fed. Reg. 331 (Jan. 3, 2003).
205. Endangered and Threatened Wildlife and Plants; Withdrawal of the Proposed Rule to List the Flat-Tailed Horned Lizard as Threatened, 68 Fed. Reg. 331, 331 (Jan. 3, 2003).
206. Id. at 335.
207. See Endangered and Threatened Wildlife and Plants; Notice of Reinstatement of the 1993 Proposed Rule to List the Flat-Tailed Horned Lizard as a Threatened Species, 70 Fed. Reg. 72,776, 72,776 (proposed Dec. 7, 2005) (describing district court's unpublished order), withdrawn, 71 Fed. Reg. 36,745 (June 28, 2006).
208. Id.
209. Endangered and Threatened Wildlife and Plants; Withdrawal of the Proposed Rule to List the Flat-Tailed Horned Lizard as Threatened, 71 Fed. Reg. 36,745, 36,745 (June 28, 2006).
210. Id. at 36749-36751.
211. id.
212. Tucson Herpetological Soc'y v. Kempthorne, No. 04-CV-00075-PHX-NVW, 2007 WL 2023477 (D. Ariz. Jul. 12, 2007), rev'd and remanded sub nom. Tucson Herpetological Soc'y v. Salazar, 566 F.3d 870, 877-78 (9th Cir. 2009).
213. Salazar, 566 F.3d at 877-78.
214. id. at 876 (noting "the Secretary challenges the district court's entire approach" to the historical-habitat issue).
215. Id.
216. Id.
217. Id.
218. Id. at 878.
219. Id.
220. Id.
221. Id. at 879.
222. Id.
223. Id. at 880.
224. For a thoughtful discussion of the role of scientific uncertainty in ESA cases specifically, as well as suggestions about how to accommodate this inescapable feature, see Doremus, Best Available, supra note 106, at 440. 173. Salazar, 566 F.3d at 882 (Noonan, J., concurring and dissenting).
225. Id.
226. Id. at 883.
227. Endangered and Threatened Wildlife and Plants; Listing the Flat-Tailed Horned Lizard as Threatened, 75 Fed. Reg. 9,377, 9,377 (proposed Mar. 2, 2010), withdrawn, 76 Fed. Reg. 14,210 (Mar. 15, 2011).
228. Endangered and Threatened Wildlife and Plants; Withdrawal of Proposed Rule to List the Flat-Tailed Horned Lizard as Threatened, 76 Fed. Reg. 14,210, 14,210 (Mar. 15, 2011).
229. Louis Sahagun, Flat-Tailed Horned Lizard Won't Be Listed as an Endangered Species, Greenspace, L.A. Times, (Mar. 14, 2011, 1:37 PM), http://latimesblogs.latimes.com/greenspace/2011/03/usfws-refuses-to-list -the-flat-tailed-horned-lizard-as-an-endangered-species.html (on file with the Columbia Law Review).
230. Endangered and Threatened Wildlife and Plants; Listing the Flat-Tailed Horned Lizard as Threatened, 75 Fed. Reg. at 9,378.
231. Id. at 9379.
232. Endangered and Threatened Wildlife and Plants; Withdrawal of Proposed Rule to List the Flat-Tailed Horned Lizard as Threatened, 76 Fed. Reg. at 14,223.
233. Id. at 1437.
234. Id. at 14237-14248.
235. Id. at 14257.
236. Id.
237. Id.
238. Id.
239. Id.
240. Id.
241. Id. at 14258.
242. For a very similar case family (Grizzly Bear), see, in chronological order, Carlton v. Babbitt, 900 F. Supp. 526, 537 (D.D.C. 1995) (remanding FWS's decision not to reclassify grizzly bear subpopulation from threatened to endangered); Carlton v. Babbitt, 26 F. Supp. 2d 102, 112 (D.D.C. 1998) (remanding again on same ground); Carlton v. Babbitt, 147 F. Supp. 2d 4, 8 (D.D.C. 2001) (rejecting challenge that was not within scope of previous litigation). The grizzly bear's current status is warranted for listing as endangered, but precluded by higher priorities. Endangered and Threatened Wildlife and Plants; Review of Native Species that are Candidates for Listing as Endangered or Threatened; Annual Notice of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions, 75 Fed. Reg. 69,222, 69,282 (Nov. 10, 2010) (continuing to find reclassification is warranted but precluded, and noting that agency began five-year review in 2007).
243. 29 U.S.C. §§ 651-678 (2006).
244. 29 U.S.C. § 655(b)(5).
245. Pub. Citizen Health Research Grp. v. Dep't of Labor, 557 F.3d 165, 169 (3d Cir. 2009) (describing history of PELs for hexavalent chromium); Am. Iron & Steel Inst. v. OSHA, 939 F.2d 975, 978-89 (D.C. Cir. 1991) (describing history of PELs for lead); UAW v. Pendergrass, 878 F.2d 389, 391-92 (D.C. Cir. 1989) (describing history of PELs for formaldehyde).
246. The classic example is the oft-criticized Industrial Union Department v. American Petroleum Institute (Benzene), 448 U.S. 607 (1980) (plurality opinion) (invalidating workplace exposure limits for benzene).
247. Howard Latin, The Feasibility of Occupational Health Standards: An Essay on Legal Decisionmaking Under Uncertainty, 78 Nw. U. L. Rev. 583, 587-598 (1983) (describing conflicting judicial treatments of uncertainty under OSH Act).
248. Oil, Chem. & Atomic Workers Union v. OSHA, 145 F.3d 120, 122 (3d Cir. 1998) (describing letter from OSHA to petitioners).
249. Id. at 123.
250. 5 U.S.C. § 706(1) (2006) (setting standards for judicial review of agency inaction).
251. Atomic Workers, 145 F.3d at 124 (quoting Pub. Citizen Health Research Grp. v. Brock, 823 F.3d 626, 629 (D.C. Cir. 1987)).
252. id. ("Faced with such varying data and differing interpretations as these studies represent, this Court is not in a position to tell the Secretary how to do her job."). Note that the agency also cited the 1994 Congressional elections as a reason for its delay. Id. at 122.
253. Pub. Citizen Health Research Grp. v. Chao, 314 F.3d 143 (3d Cir. 2002). For a similar view expressed on a second-generation procedural challenge, see In re Int'l Chem. Workers Union, 958 F.2d 1144, 1150 (D.C. Cir. 1992) (imposing deadline for OSHA to engage in rulemaking for workplace exposure limits to cadmium).
254. Chao, 314 F.3d at 145 ("This notice appears to have been prompted by the displeasure clearly evidenced by the panel during oral argument.").
255. Press Release, OSHA, OSHA Plans Proposed Rule on Hexavalent Chromium (Dec. 4, 2002), http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEA SES&p_id=9842 (on file with the Columbia Law Review).
256. Chao, 314 F.3d at 145-146.
257. Id. at 146-47.
258. Id. at 148.
259. Id.
260. Id. at 150. OHSA also pointed to the newly elected Bush administration's requirements and the events of September 11, 2001, as reasons for the delay. Id. The court rejected these arguments. Id. at 157-158.
261. Id. at 156 (emphasis added by court) (quoting 29 U.S.C. § 655(b)(5) (2006)); see also id. ("[C]ourts have warned that 'OSHA cannot let workers suffer while it awaits the Godot of scientific certainty.'" (quoting United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1266 (D.C. Cir. 1980))).
262. Id. at 155-156.
263. Id. at 156. Interestingly, the agency had also argued that if it proceeded with the rulemaking, the scientific uncertainties would expose it to reversal. Id. at 155.
264. Id. at 159. The court noted that this was an unusual approach, and if the parties did not reach a mutually agreeable timetable, the court would impose one itself. Id. Following the remand, the agency sought, and the court granted, a six-week extension for publishing the final rule. See Occupational Exposure to Hexavalent Chromium (Final Rule), 71 Fed. Reg. 10,100, 10,104 (Feb. 28, 2006) (codified as amended at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926).
265. Occupational Exposure to Hexavalent Chromium (Proposed Rule), 69 Fed.Reg. 59,306, 59,306 (proposed Oct. 4, 2004) (codified as amended at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926).
266. Occupational Exposure to Hexavalent Chromium (Final Rule), 71 Fed. Reg. at 10,100.
267. Occupational Exposure to Hexavalent Chromium (Proposed Rule), 69 Fed. Reg. at 59,313-14.
268. 448 U.S. 607 (1980).
269. Occupational Exposure to Hexavalent Chromium (Proposed Rule), 69 Fed. Reg. at 59,360, 59,388-91.
270. Occupational Exposure to Hexavalent Chromium (Final Rule), 71 Fed. Reg. at 10,103.
271. Occupational Exposure to Hexavalent Chromium (Proposed Rule), 69 Fed. Reg. at 59,306.
272. id. at 59321-59323.
273. Pub. Citizen Health Research Grp. v. U.S. Dep't of Labor, 557 F.3d 165, 169 (3d Cir. 2009).
274. id. at 169-171+178-179+181-182.
275. id. at 185-186 (noting this requirement "departs from both [OSHA's] proposed rule and its past practice").
276. Id. at 185-186. Note that this final rule also departed from past rules; every prior standard had required notification of all monitoring results. Id. at 185.
277. Id. at 191.
278. Id. at 191-192.
279. Revising the Notification Requirements in the Exposure Determination Provisions of the Hexavalent Chromium Standards (Direct Final Rule), 75 Fed. Reg. 12,681, 12,681 (Mar. 17, 2010) (codified as amended at 29 C.F.R. pts. 1910, 1915, 1926); see also Revising the Notification Requirements in the Exposure Determination Provisions of the Hexavalent Chromium Standards (Notice of Proposed Rulemaking), 75 Fed. Reg. 12,485, 12,486 (proposed Mar. 16, 2010) (codified as amended at 29 C.F.R. pts. 1910, 1915, 1926) (making same proposal). For an explanation of the direct final rule procedure, see Revising the Notification Requirements in the Exposure Determination Provisions of the Hexavalent Chromium Standards (Direct Final Rule), 75 Fed. Reg. at 12,682. According to the agency, instances where direct final rulemaking is appropriate include "minor changes to regulations resulting from a judicial remand." Id.
280. Revising the Notification Requirements in the Exposure Determination Provisions of the Hexavalent Chromium Standards (Direct Final Rule), 75 Fed. Reg. at 12,682.
281. Id. at 12683.
282. Id.
283. Revising the Notification Requirements in the Exposure Determination Provisions of the Hexavalent Chromium Standards (Final Rule), 75 Fed. Reg. 27,188, 27,188 (May 14, 2010) (codified as amended at 29 C.F.R. pts. 1910, 1915, 1926) (confirming effective date).
284. Note also that in both the first- and second-generation suits, the agency pointed to new presidential administrations' policies as reasons for the delay. See, e.g., Pub. Citizens Health Research Grp. v. Chao, 317 F.3d 143, 150 (3d. Cir. 2002) (noting OHSA's claim that new Bush Administration policy contributed to delay). The court in each instance acknowledged the change, but did not seem to give it much weight in determining the proper outcome of the case. See id. (finding hexavalent chromium had nonetheless unacceptably "fallen by the wayside").
285. For a similar case family involving workplace exposure standards for formaldehyde, see, in chronological order, UAW v. Donovan, 590 F. Supp. 747, 753 (D.D.C. 1984) (requiring OSHA to reconsider decision not to issue emergency standards, or to create a revised standard); UAW v. Donovan, 756 F.2d 162, 165 (D.C. Cir. 1985) (affirming district court and cautioning agency that circuit, like district, court would be extremely displeased with any deviations from the court-established schedule); Occupational Exposure to Formaldehyde (Final Rule), 52 Fed. Reg. 46,168, 46,169 (Dec. 4, 1987) (codified as amended at 29 C.F.R. pts. 1910, 1926) (setting permissible exposure limits); UAW v. Pendergrass, 878 F.2d 389, 400 (D.C. Cir. 1989) (remanding, in part, for failure to explain use of non-linear dose-response curve); Occupational Exposure to Formaldehyde (Remand Final Rule), 57 Fed. Reg. 22,290, 22,292 (May 27, 1992) (codified as amended at 29 C.F.R. pt. 1910) (explaining further reduction in permissible exposure limit based on inability to quantify risk reduction as court had required). Note that, in this case, the agency ultimately adopted a slightly more protective standard as a result of the second-generation remand. In another case family, involving workplace exposure standards for lead, OSHA relied on updated information for at least one of its remand responses. See, in chronological order, Occupational Exposure to Lead (Final Standard), 43 Fed. Reg. 52,952, 53,007-14 (Nov. 14, 1978) (codified as amended at 29 C.F.R. pt. 1910) (setting standard for occupational exposure to lead); United Steelworkers v. Marshall, 647 F.2d 1189, 1203 (D.C. Cir. 1980) (remanding for reconsideration of technical and economic feasibility findings for airborne lead standards); Occupational Exposure to Lead (Final Rule), 54 Fed. Reg. 29,142, 29,274-75 (July 11, 1989) (codified as amended at 29 C.F.R. pt. 1910) (setting standards for eight of nine remanded industries following additional investigation); Occupational Exposure to Lead (Final Rule, Statement of Reasons), 55 Fed. Reg. 3146, 3166-67 (Jan. 30, 1990) (codified as amended at 29 C.F.R. pt. 1910) (setting standard for remaining industry); Am. Iron & Steel Inst. v. OSHA, 939 F.2d 975, 1010 (D.C. Cir. 1991) (upholding remanded action for all but one industry); Occupational Exposure to Lead (Amendments to Final Rule), 60 Fed. Reg. 52,856, 52,858-59 (Oct. 11, 1995) (codified as amended at 29 C.F.R. pt. 1910) (reflecting settlement and otherwise relying on existing record in subsequent remand).
286. See infra Part III.D. (suggesting methods of improving serial litigation).
287. Atomic Energy Act of 1954, 42 U.S.C. §§ 2131-2141 (2006). The AEA gave rise to one of the most famous case families of administrative law. In chronological order, see Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524 (1978) (holding courts may not impose procedures on agencies beyond those found in the APA); Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983) (holding that when agencies act at the frontiers of science, courts must be at their most deferential).
288. Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1242 (10th Cir. 2004) ("[S]tate laws within 'the entire field of nuclear safety concerns' are preempted, even if they do not directly conflict with federal law." (quoting Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 212 (1983))).
289. E.g., Baltimore Gas, 462 U.S. at 101 ("Administrative efficiency and consistency of decision are both furthered by a generic determination of these effects without needless repetition of the litigation in individual proceedings, which are subject to review by the Commission in any event.").
290. Common Standards, 10 C.F.R. § 50.40(b) (2011).
291. Coal. for the Env't v. NRC, 795 F.2d 168, 170-73 (D.C. Cir. 1986) (detailing agency and court actions strengthening the rule).
292. Elimination of Review of Financial Qualifications of Electric Utilities in Licensing Hearings for Nuclear Power Plants (Final Rule), 47 Fed. Reg. 13,750, 13,753-55 (Mar. 31, 1982) (codified as amended at 10 C.F.R. pts. 2, 50).
293. Financial Qualifications; Domestic Licensing of Production and Utilization Facilities (Proposed Rule), 46 Fed. Reg. 41,786, 41,788 (proposed Aug. 18, 1981) (codified as amended at 10 C.F.R. 50).
294. Id. at 41788.
295. Elimination of Review of Financial Qualifications of Electric Utilities in Licensing Hearings for Nuclear Power Plants (Final Rule), 47 Fed. Reg. at 13,751.
296. New Eng. Coal. on Nuclear Pollution v. NRC, 727 F.2d 1127 (D.C. Cir. 1984).
297. Id. at 1131.
298. Id. at 1130.
299. Unlike the previous rule, however, it retained such review for those seeking construction licenses. Elimination of Review of Financial Qualifications of Electric Utilities in Operating License Reviews and Hearings for Nuclear Power Plants (Proposed Rule), 49 Fed. Reg. 13,044, 13,045 (proposed Apr. 2, 1984) (codified as amended at 10 C.F.R. pts. 2, 50).
300. Financial Qualifications Statement of Policy, 49 Fed. Reg. 24,111, 24,111 (June 12, 1984).
301. Elimination of Review of Financial Qualifications of Electric Utilities in Operating License Reviews and Hearings for Nuclear Power Plants (Proposed Rule), 49 Fed. Reg. at 13,045.
302. Compare id. ("Utilities are usually regulated through state and/or federal economic agencies, and generally are allowed to recover all or a portion of the costs of constructing generating facilities and all of the costs of operation, subject to the oversight of such state and/or federal agencies."), with Financial Qualifications; Domestic Licensing of Production and Utilization Facilities (Proposed Rule), 46 Fed. Reg. 41,786, 41,788 (proposed Aug. 18, 1981) (codified as amended at 10 C.F.R. pt. 50) ("As discussed above, such utilities are usually regulated by state and/or federal economic regulatory agencies, and generally recover the costs of constructing generating facilities through the ratemaking process, subject to the oversight of such state and/or federal agencies.").
303. Elimination of Review of Financial Qualifications of Electric Utilities in Operating License Reviews and Hearings for Nuclear Power Plants (Proposed Rule), 49 Fed. Reg. at 13,045 (citing Fed. Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 619 (1944)).
304. Elimination of Review of Financial Qualifications of Electric Utilities in Operating License Review and Hearings for Nuclear Power Plants, 49 Fed. Reg. 35,747, 35,747-51 (Sept. 12, 1984) (codified as amended at 10 C.F.R. pts. 2, 50).
305. Coal. for the Env't v. NRC, 795 F.2d 168, 173 n.2 (D.C. Cir. 1986).
306. Id. at 173. The court also rejected an argument that the agency should be bound by its previous determination that financial qualifications needed to be determined on a case-by-case basis. Id. at 174.
307. Id. at 175-176.
308. Id. at 177.
309. Id.
310. Id.
311. Id.
312. There is some evidence that this is the general practice of agencies. See Jordan, supra note 5, at 425-27 (documenting EPA's practice of interpreting courts' failure to vacate to mean that rule remained in effect).
313. New Eng. Coal. on Nuclear Pollution v. NRC, 727 F.2d 1127, 1131 (D.C. Cir. 1984).
314. See infra Part III (assessing benefits and drawbacks).
315. 42 U.S.C. § 7410(a)(1) (2006).
316. Id. § 7410(k)(5).
317. Id. § 7407.
318. id. § 7476(a) (requiring PSD standards for certain specified pollutants).
319. Id. § 7471.
320. Nitrogen oxides contribute to acid rain; they also react with volatile organic compounds in the presence of sunlight to create ground-level ozone, which is harmful to the respiratory system. See Findings of Significant Contribution and Rulemaking on Section 126 Petitioners for Purposes of Reducing Interstate Ozone Transport, 64 Fed. Reg. 28,250, 28,254 (May 25, 1999) (codified as amended at 40 C.F.R. pt. 52).
321. 213 F.3d 663 (D.C. Cir. 2000).
322. Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone, 63 Fed. Reg. 57,356, 57,356 (Oct. 27, 1998).
323. Michigan, 213 F.3d at 670. EGUs that burn fossil fuels to create electricity are important contributors to NOx emissions, and thus, ground-level ozone.
324. Id. at 693.
325. Id. at 695.
326. 249 F.3d 1032 (D.C. Cir. 2001).
327. 42 U.S.C. § 7426(b) (2006).
328. Findings of Significant Contribution and Rulemaking on Section 126 Petitions for Purposes of Reducing Interstate Ozone Transport, 64 Fed. Reg. 28,250, 28,251 (May 25, 1999) (codified as amended at 40 C.F.R. pt. 52).
329. The final rule also established a cap-and-trade program for NOx. Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone, 63 Fed. Reg. 57,356, 57,356 (Oct. 27, 1998) (codified as amended at 40 C.F.R. pts. 51, 72, 75, 96). See also Section 126, 249 F.3d at 1039 (providing background).
330. Section 126, 249 F.3d at 1052.
331. Id. at 1052-1053.
332. This term refers to the "heat input" for various sources. Appalachian Power Co. v. EPA (NOx Technical Amendments), 251 F.3d 1026, 1030 (D.C. Cir. 2001). For fossil-fuelburning electrical generators, the heat input, or value of energy present in the fuel, can be correlated to the expected emissions.
333. Section 126, 249 F.3d at 1053.
334. Id.
335. Id.
336. Id. at 1055. In a separate section, the court also held that the EPA had failed to explain its classification of cogenerators and failed to respond to significant comments on the issue. Id. at 1063. But the court offered a hint as to what sorts of explanations might be reasonable: "The explanation by reference to electric utility deregulation may well explain abandonment of the old definition...." Id. at 1062.
337. 251 F.3d 1026 (D.C. Cir. 2001).
338. Id. at 1029.
339. Technical Amendment to the Finding of Significant Contribution and Rulemaking for Certain States for Purposes of Reducing Regional Transport of Ozone, 64 Fed. Reg. 26,298 (May 14, 1999) (codified as amended at 40 C.F.R. pt. 51). In response to public comments and the EPA's own technical review, the EPA issued a second Technical Amendment less than a year later. Technical Amendment to the Finding of Significant Contributions and Rulemaking for Certain States for Purposes of Reducing Regional Transport of Ozone, 65 Fed. Reg. 11,222, 11,222 (Mar. 2, 2000) (codified as amended at 40 C.F.R. pt. 51). This second amendment was also meant to ensure that the NOx SIP Call and section 126 rule were based on the same data. Id.
340. NOx Technical Amendments, 251 F.3d at 1032-35. Specifically, the EPA had invited comment on the amendments, alleviating any statute of limitations problem. The challenges in this suit were to the emission inventories and budgets in the technical amendments, raising different issues than those presented in Michigan. Id. 287. Id. at 1030.
341. Id.
342. Id.
343. Id. at 1035.
344. Id.
345. Id.
346. Id. at 1041; see also Michigan v. EPA, 213 F.3d 663, 692 (D.C. Cir. 2000) (finding EPA had failed to provide sufficient notice and opportunity to comment when it changed the definition of EGU in final NOx SIP Call).
347. See supra text accompanying notes 269-270 (describing holding). 295. NOx Technical Amendments, 251 F.3d at 1039.
348. Id. Notably, the court rejected the petitioners' request that it also vacate the Technical Amendments. The court did not separately analyze whether vacation was appropriate; rather, it simply stated that the petitioners were entitled to the same relief as was obtained in the Michigan case. Id.
349. Response to Court Remand on NOx SIP Call and Section 126 Rule, 67 Fed. Reg. 21,868, 21,868 (May 1, 2002). The EPA also published a response to issues raised by the remands in all three initial cases-Michigan, Section 126, and NOx Technical Amendments-in another proceeding. See Interstate Ozone Transport: Response to Court Decisions on the NOx SIP Call, NOx SIP Call Technical Amendments, and Section 126 Rules, 67 Fed. Reg. 8396, 8404 (proposed Feb. 22, 2002) (codified as amended at 40 C.F.R. pts. 51, 52, 96, 97) (maintaining previous definition of EGU with only minor changes).
350. Response to Court Remand on NOx SIP Call and Section 126 Rule, 67 Fed. Reg. at 21,871.
351. Id. Later in its response, the agency "respectfully observe[d] that the Court's views to the contrary are misperceptions that resulted from what EPA now realize[d] was EPA's own inadvertently confusing statement by EPA in the Response to Comment document for the Section 126 Rule." Id. at 21,873.
352. Id. at 21871-21872.
353. id. at 21882-21890 (noting "EPA's heat input projections for the EGUs for the NOx SIP Call region... are consistent with the actual heat input data... available").
354. Id. at 21,875 ("As explained by the Court in the Section 126 Decision: '[T]he EPA has undoubted power to use predictive models so long as it explain[s] the assumptions and methodology used in preparing the model and provide[s] a complete analytic defense should the model be challenged.'" (alterations in original) (quoting Appalachian Power Co. v. EPA, 249 F.3d 1032, 1052 (D.C. Cir. 2001))). There was a typo in the agency's citation; it reported the volume number as 294. Id. at 21,876.
355. Id. at 21900.
356. Id.
357. Id. at 21901.
358. Id.
359. 362 F.3d 861, 864 (D.C. Cir. 2004).
360. Id. at 869.
361. Id. at 868-869.
362. Id. at 871 (citing super deference principle). The court rejected petitioners' other arguments because they had not been raised in the initial litigation or the original rulemaking. Id. at 872.
363. 42 U.S.C. §§ 7470-7479 (2006).
364. Id. § 7476.
365. Prevention of Significant Deterioration for Hydrocarbons, Carbon Monoxide, Nitrogen Oxides, Ozone, and Lead (PSD Set II), 45 Fed. Reg. 30,088, 30,088 (May 7, 1980).
366. Regulations Deleted from the Previous Agenda, 46 Fed. Reg. 54,036, 54,036 (Oct. 30, 1981).
367. Sierra Club v. Thomas, 658 F. Supp. 165, 168 (N.D. Cal. 1987).
368. Id. at 170.
369. Id. at 172-174.
370. Id. at 175.
371. Id. ("In the absence of a showing of impossibility, EPA must look to Congress, not this Court, for an extension of time. Defendant is hereby placed on notice that failure to comply with the terms of this order will not be tolerated....").
372. Prevention of Significant Deterioration for Nitrogen Oxides, 53 Fed. Reg. 3698, 3699 (proposed Feb. 8, 1988) (codified as amended at 40 C.F.R. pts. 51, 52). This notice included the full case name and number, though not a citation to a reporter. Id.
373. Id. at 3710. In the notice of the final rule, the previous litigation was summarized more briefly and the complaint about the tight timeline did not appear. See Prevention of Significant Deterioration for Nitrogen Oxides (Final Rule), 53 Fed. Reg. 40,656, 40,656 (Oct. 17, 1988) (codified as amended at 40 C.F.R pts. 51, 52).
374. Envtl. Def. Fund v. EPA, 898 F.2d 183, 185 (D.C. Cir. 1990).
375. Id.
376. Id. at 185-187.
377. Id. at 188-90. Although this might have been an issue of statutory interpretation implicating Chevron, the court used an arbitrary and capricious approach. Id. at 188 (citing Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983); Specialty Equip. Market Ass'n v. Ruckelshaus, 720 F.2d 124, 132 (D.C. Cir. 1983)). For a dialogic case family involving Chevron, see, in chronological order, Davis Cnty. Solid Waste Mgmt. v. EPA, 101 F.3d 1395, 1402 (D.C. Cir. 1996) (rejecting agency's construction of statute at Chevron step one), amended on reh'g, 108 F.3d 1454, 1460 (D.C. Cir. 1997) (per curiam) (modifying remedy only by changing from remand with full vacatur to remand with partial vacatur); Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 944, 950 (D.C. Cir. 2004) (reaching Chevron step two and upholding agency's construction, but remanding on arbitrary and capricious grounds).
378. Environmental Defense Fund, 898 F.2d at 189.
379. Id. (citing SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 92-95 (1943)).
380. Id. at 190.
381. Prevention of Significant Deterioration for Nitrogen Oxides (Final Rule), 70 Fed. Reg. 59,582, 59,582 (Oct. 12, 2005) (codified as amended at 40 C.F.R. pts. 51, 52). The proposed rule is available at Prevention of Significant Deterioration for Nitrogen Oxides (Proposed Rule), 70 Fed. Reg. 8,880, 8,880 (proposed Feb. 23, 2005) (codified as amended at C.F.R. pts. 51, 52).
382. Prevention of Significant Deterioration for Nitrogen Oxides (Final Rule), 70 Fed. Reg. at 59,582, 59,586.
383. Id.
384. Id. at 59585-59589.
385. Id. at 59582.
386. Id. at 59592.
387. 489 F.3d 1320 (D.C. Cir. 2007).
388. Id. at 1329.
389. Id. at 1333 (Rogers, J., concurring).
390. Id. at 1334.
391. Id. at 1335.
392. See supra note 4 (describing various meanings of "dialogue" and explaining this Article's use of the term in its normative sense).
393. See supra Part II.D.1 (discussing improvements in communication between court and EPA over time); see also supra note 181 and accompanying text (describing FWS's acknowledgement of its previous lack of clarity in Lizard case family rulemaking).
394. See supra Part II.D.2.
395. See supra Part II.C (illustrating contentious dialogue in NRC cases).
396. The Endangered Species Act cases illustrate this point quite clearly. See supra Part II.A (noting frequent expressions of frustration uttered by the courts and FWS alike).
397. See Cross, supra note 5, at 1306-08 ("Friedman's dialogic justification works much better for constitutional than administrative law, however, as his article implicitly recognizes.").
398. Id. at 1308 n.353.
399. Id. at 1309.
400. Id. at 1310.
401. See 5 U.S.C. § 551(4) (2006) (defining agency "rule" as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy").
402. See id. §§ 702-706 (providing for judicial review of final agency action).
403. supra text accompanying notes 214-220 (illustrating agency's and court's use of law in Hexavalent Chromium case family).
404. See supra text accompanying notes 249-251 (illustrating agency's and court's use of law in NRC-Financial Qualifications case family).
405. See supra text accompanying notes 158-161 (describing how agency's action on remand, which was tailored to court's opinion, fared better on subsequent judicial challenge).
406. See supra text accompanying note 137 (noting increased judicial reliance on super deference following responsive remand in Mexican Spotted Owl case family); supra text accompanying notes 217-220 (noting heavy judicial reliance on agency's scientific and legal analysis following responsive remand in Hexavalent Chromium case family).
407. See supra text accompanying notes 247-251 (detailing this progression).
408. See supra notes 299-300 and accompanying text (detailing agency's correction).
409. See supra notes 208-210 and accompanying text (detailing court's signals about science and agency's response).
410. See supra notes 151, 161-170 and accompanying text (detailing courts' descriptions of underlying science).
411. For another example of a dialogic case in which the court sent strong signals about the science, see Carlton v. Babbitt, 26 F. Supp. 2d 102 (D.D.C. 1998), in which the court stated: While the agency remains the expert in this field, it appears on the basis of the scientific evidence presented that the Selkirk population is simply too small to justify the agency's decision not to reclassify it as endangered. While the FWS may once again reassess the status... a population of 26 to 36 grizzly bears seems to be endangered almost by definition. Id. at 112.
412. Schuck & Elliott, supra note 22, at 1047. Professor Jordan's more qualitative study unearthed an occasional example of an agency relying on new information in support of its actions on remand, but his study did not expressly consider this issue. See Jordan, supra note 5, at 417 n.120 (describing agency's consideration of new technology on remand).
413. See supra notes 109-138 and accompanying text (describing Mexican Spotted Owl case family).
414. See supra notes 109-138 and accompanying text (describing Mexican Spotted Owl case family). Similarly, in the Lizard case family, the agency explained its new reasoning as stemming from new scientific information. See supra note 187 and accompanying text.
415. See supra notes 192-232 and accompanying text (detailing Hexavalent Chromium case family).
416. See supra notes 267-310 and accompanying text (detailing Ozone Transport case family).
417. Note that the Lizard case family, see supra notes 139-191 and accompanying text, and the NOx-PSD case family, see supra notes 311-339 and accompanying text, also involved agency actions on remand that used updated information.
418. See Rossi, supra note 9, at 803 (demonstrating that even though hard look review made rulemaking less attractive for FERC, the agency nevertheless found ways to innovate using smaller adjudicative proceedings). However, this benefit of dialogue may be more pronounced in the risk-regulation context than in other contexts where scientific uncertainty plays a smaller role.
419. Bickel, supra note 3, at 35 (encouraging "utmost respect" for decisions by coordinate branches of government).
420. Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577, 581 (1993). For an overview of this debate, see generally sources cited supra note 3.
421. Coenen, Second-Look Rules, supra note 3.
422. Coenen, Pros and Cons, supra note 3.
423. Coenen, Second-Look Rules, supra note 3, at 1587-1588.
424. Id. at 1604-1605 (citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)).
425. Pub. Citizen Health Research Grp. v. Dep't of Labor, 557 F.3d 165, 185-86 (3d Cir. 2009). In a similar case, in response to an invitation by the EPA to use "common sense," the court replied, "Common sense cannot answer that question; petitioner is entitled to a decision based on the expertise of the agency." Tex Tin Corp. v. EPA (Tex Tin I), 935 F.2d 1321, 1324 (D.C. Cir. 1991) (per curiam).
426. Revising the Notification Requirements in the Exposure Determination Provisions of the Hexavalent Chromium Standards (Direct Final Rule), 75 Fed. Reg. 12,681, 12,682-83 (Mar. 17, 2010) (codified as amended at 29 C.F.R. pts. 1910, 1915, 1926).
427. See supra text accompanying notes 267-310 (discussing Ozone Transport case family).
428. United States v. Lopez, 514 U.S. 549, 563 (1995).
429. Coenen, Second-Look Rules, supra note 3, at 1657-1661 (discussing reasoning of Lopez).
430. Colker & Brudney, supra note 3.
431. Coenen, Second-Look Rules, supra note 3, at 1836.
432. id. at 1844-1845 (collecting supporters and critics of second look review).
433. Id. at 1883-1884 (collecting examples).
434. Emily Hammond Meazell, Scientific Avoidance: Toward More Principled Judicial Review of Legislative Science, 84 Ind. L.J. 239, 241 (2009) (offering this explanation for Court's decision in Gonzales v. Carhart (Carhart II), 127 S. Ct. 1610 (2007)).
435. See supra notes 267-310 and accompanying text (detailing Ozone Transport case family).
436. Appalachian Power Co. v. EPA, 251 F.3d 1026, 1035 (D.C. Cir. 2001) (noting highly deferential standard of review applied to EPA determinations based upon complex and technical matters).
437. Response to Court Remand on NOx SIP Call and Section 126 Rule, 67 Fed. Reg. 21,868, 21,874-901 (May 1, 2002).
438. West Virginia v. EPA, 362 F.3d 861, 869 (D.C. Cir. 2004) (explaining EPA's failure to reopen notice and comment violated CAA).
439. Id. at 873. A similar, if more qualified, outcome was obtained in the Lizard case family. See supra Part II.A.2.
440. See supra Part II.A.2 (discussing remands in Lizard case family).
441. See supra Part II.A.1 (describing multiple remands in Mexican Spotted Owl case family); supra Part II.B (discussing remands required in Hexavalent Chromium case family).
442. Cross, supra note 5, at 1307 ("One cannot say that more dialogue is always better than less; otherwise, we would talk forever and do nothing."). This raises the question of how one would identify a dialogue's completion. For ease of discussion, this Article has treated dialogue as being at its end when the rounds of litigation cease. But of course, other actors-particularly Congress or the President-could join the dialogue during the serial litigation or after it. See supra note 21 (discussing possibility of dialogues between more than two parties). Indeed, it seems possible that too much dialogue might invite other institutional discussants to join in, thereby limiting what agencies or the courts might be able to do in subsequent iterations. See Rossi, supra note 9, at 810-11 (suggesting "that the hard look doctrine, as applied by reviewing courts in a political conversation with other governmental branches, may have had at least some impact on policy choice and agenda setting outside of FERC").
443. See supra notes 139-169 and accompanying text (discussing case family). For a similar outcome in ESA litigation, see the Grizzly Bear case family, described supra note 191.
444. These include the Lizard case family, see supra Part II.A.2, the Mexican Spotted Owl case family, see supra Part II.A.1, the Hexavalent Chromium case family, see supra Part II.B, and the NOx-PSD case family, see supra Part II.D.2. Cases exhibiting similar patterns include the Grizzly Bear case family, see supra note 191, and the Formaldehyde case family, see supra note 231.
445. Compare Tex Tin case family, see supra note 105 (remanded), Mexican Spotted Owl case family, see supra Part II.A.1 (remanded), Lizard case family, see supra Part II.A.2 (remanded), Grizzly Bear case family, see supra note 191 (remanded), and Hexavalent Chromium case family, see supra Part II.B (remanded), with NRC-Financial Qualifications case family, see supra Part II.C (upheld), Ozone Transport case family, see supra Part II.D.1 (upheld), NOx-PSD case family, see supra Part II.D.2 (upheld), and Municipal Solid Waste case family, see supra note 325 (upheld).
446. As I note below, however, a deeper look illustrates that once courts and agencies really engage in dialogue, the cases may resolve more quickly. See infra Part III.D. Thus, it is not a feature of dialogue that causes these delays, but rather a lack thereof.
447. Coenen, Second-Look Rules, supra note 3, at 1845-1850 (outlining arguments against expansive use of structural review).
448. Coenen, Pros and Cons, supra note 3, at 2880 (describing futility critique of structural review).
449. Envtl. Def. Fund, Inc. v. EPA, 898 F.2d 183, 189 (D.C. Cir. 1990); see also supra notes 323-328 and accompanying text (discussing second-generation suit).
450. Environmental Defense Fund, 898 F.2d at 190.
451. Envtl. Def. v. EPA, 489 F.3d 1320, 1326 (D.C. Cir. 2007) (noting agency's adoption of court's suggested approach). But see id. at 1334 (Rogers, J., concurring) ("By waiting fifteen years, EPA has promulgated a rule... that may already be obsolete.")
452. New Eng. Coal. on Nuclear Pollution v. NRC, 727 F.2d 1127, 1130 (D.C. Cir. 1984).
453. See supra Part II.A.2 (describing Lizard case family).
454. That is, statutes reviewed under a minimum rationality standard are unlikely to be struck down. See, e.g., FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993) (noting under rational basis review in equal protection context, statute must be upheld "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification").
455. Robert C. Farrell, Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through Romer v. Evans, 32 Ind. L. Rev. 357, 357 (1999) (detailing rarity of successful rational basis claims but noting some do exist).
456. Jordan, supra note 5, at 421-22 & n.149 (describing agency's lack of interest in remanded provision in Horsehead Resource Development Co. v. Browner, 16 F.3d 1246 (D.C. Cir. 1994), where that provision had been created at request of industry).
457. id. at 417 & n.125 (describing Chemical Waste Management, Inc. v. EPA, 976 F.2d 2 (D.C. Cir. 1992), after the remand of which the agency took no action on particular heavy metal standard because it was revising all of its standards for heavy metal).
458. id. at 414 & n.105 (describing American Water Works v. EPA, 40 F.3d 1266 (D.C. Cir. 1994), which remanded an insignificant portion of a rule without vacatur after which agency took no further action and continued to operate under original rule).
459. id. at 415 (describing low-priority remand in Engine Manufacturers Association v. EPA, 20 F.3d 1177 (D.C. Cir. 1994), where challenger did not press agency or court for further action).
460. Ronald M. Levin, The Story of the Abbott Labs Trilogy: The Seeds of the Ripeness Doctrine, in Administrative Law Stories 431, 473 (Peter L. Strauss ed., 2006) (noting agency has never proceeded with study involving links between hair dye and cancer, and has simply operated under court-imposed stay of related rules for twentyfive years).
461. Arthur Lupia & Mathew D. McCubbins, Learning from Oversight: Fire Alarms and Police Patrols Reconstructed, 10 J.L. Econ. & Org. 96, 97 (1994)
462. "By definition, police-patrol oversight is likely to be an effective way for legislators to track bureaucratic actions. However, it is also likely to be very costly in terms of the time and resources needed to conduct it."; see also Cross, supra note 5, at 1303-05 (noting high transaction costs when Congress attempts to override judicial decisions); cf. Action for Children's Television v. FCC, 821 F.2d 741, 743 (D.C. Cir. 1987) (remanding to agency for further explanation of rule deregulating children's television), superseded by statute, Children's Television Act of 1990, Pub. L. No. 101-437, §§ 101-103, 104 Stat. 996, 996-97 (codified as amended at 47 U.S.C. §§ 303a-303b (2006)) (requiring agency to reinstate regulations).
463. See supra text accompanying notes 58-65 (discussing Chenery I principle).
464. See supra text accompanying notes 66-69 (discussing these functions of hard look review).
465. I attempted to do this in Westlaw, Lexis, the Unified Agenda, and Regulations.gov. Although some results were valid, most were not.
466. Occupational Exposure to Hexavalent Chromium (Final Rule), 71 Fed. Reg. 10,100 (Feb. 28, 2006) (codified as amended at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926) (failing to provide citations for previous orders); Endangered and Threatened Wildlife and Plants; Withdrawal of the Proposed Rule to List the Flat-Tailed Horned Lizard as Threatened, 62 Fed. Reg. 37,852 (July 15, 1997) (failing to cite previous order).
467. E.g., Response to Court Remand on NOx SIP Call and Section 126 Rule, 67 Fed. Reg. 21,868 (May 1, 2002).
468. E.g., Pub. Health Citizen Research Grp. v. Chao, 314 F.3d 143, 146-48 (3d Cir. 2002) (describing relevant science for hexavalent chromium).
469. Schuck & Elliot, supra note 22, at 1045 (finding agencies change their positions more frequently than they affirm their original decisions).
470. See, e.g., Tex Tin Corp. v. EPA (Tex Tin II), 992 F.2d 353, 355 (D.C. Cir. 1993) (vacating Superfund listing on second-generation suit where agency failed to comply with previous remand).
471. Indeed, Professor Levin suggests this option for appropriate cases. See Levin, Vacation, supra note 5, at 384-85. The American Bar Association suggests a similar approach: Where the court orders the remedy of remand without vacation, it should give serious consideration to specifying a time frame within which the agency is to comply with the terms of the remand order. The importance of setting a time frame is heightened if the burden of a remand on the challenging party noticeably increases with its duration. See id. at 387 (reprinting American Bar Association Recommendation No. 107B).