Substituting substantive for procedural review of guidance documents

Texas Law Review

Volumn 90, Issue 2, 2012, Pages 331-394

  Seidenfeld, Mark ^a  

^a FLORIDA STATE UNIVERSITY   (United States)

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EID: 84855731914     PISSN: 00404411     EISSN: None     Source Type: Journal    
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References (402)

1. There has also been recent attention given to guidance documents in state administrative law. See, e.g., REVISED MODEL STATE ADMIN. PROCEDURE ACT § 311 & cmt. (2010) (setting out model guidelines for the issuance and binding effect of guidance documents). Although many of the arguments I make have merit for state administrative law, this Article directly addresses only federal administrative law.
2. 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, 1372 (1992) (concluding that numerous policy documents bind the public and therefore should have been issued as legislative rules),
3. Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element, 53 ADMIN. L. REV. 803, 807 (2001) (criticizing the D.C. Circuit for unduly restricting agency use of guidance documents).
4. James Marshall, GOLDILOCKS AND THE THREE BEARS (1988).
5. David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut, 120 YALE L.J. 276, 324-325 (2010)
6. (contending that current doctrine is better than competing approaches for determining whether rules are legislative). To be fair to Franklin, he does not argue that current doctrine is problem free. See id. at 324 (acknowledging all of the current doctrine's 'smog and muddle).
7. See, e.g., id. at 324-25 (concluding that current doctrine is better than competing approaches in determining whether a rule is legislative rather than mere guidance);
8. William Funk, When Is a "Rule" a Regulation? Marking a Clear Line Between Nonlegislative Rules and Legislative Rules, 54 ADMIN. L. REV. 659, 671 (2002) (arguing that a "simple, notice-and-comment test works for determining whether a rule is a legislative" or not).
9. Jacob E. Gersen, Legislative Rules Revisited, 74 U. CHI. L. REV. 1705, 1719 (2007) (arguing that if notice-and-comment procedures were used, "the rule should be deemed legislative and binding .... If they were not, the rule is nonlegislative.").
10. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. CHI. L. REV. 1383, 1385 (2004)
11. (contending that courts do not permit agencies to select their preferred policy-making form without explanation-courts establish the standard of review under which the action will be assessed, determine who can bring a suit and when it can be brought, and 'shape the procedures that an agency must follow when it relies on a policymaking tool').
12. Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 CORNELL L. REV. 397, 434 (2007).
13. 5 U.S.C. § 706(2)(A) (2006). Bill Funk made similar suggestions in a proposed bill he presented to the Administrative Law Forum. William Funk, Legislating for Nonlegislative Rules, 56 ADMIN. L. REV. 1023, 1024-26 (2004). The form of Funk's essay, however, precluded a comprehensive analysis of his proposal and the need to modify doctrine to allay concerns about immediate reviewability. See id. at 1024 (explaining that due to spatial constraints the author was unable to treat all of the issues in a holistic fashion). Furthermore, my proposal would obviate the need for Congress to amend the APA, a prospect that is unlikely.
14. The Supreme Court adopted the reasoned-decisionmaking approach to arbitrary and capricious review in Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42 (1983). See also Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 476-77 (2003) (noting that the Supreme Court adopted a version of the D.C. Circuit's 'hard-look' standard, 'ensuring that agencies respond to criticisms and explain their rejection of alternative solutions').
15. In one of his many articles on guidance documents, Professor Robert Anthony advocated that policy statements be substantively reviewed with less deference than that usually accorded under the hard-look test.
16. Robert A. Anthony & David A. Codevilla, Pro-Ossification: A Harder Look at Agency Policy Statements, 31 WAKE FOREST L. REV. 667, 680 (1996). Anthony, however, does not address when such review should occur.
17. 5 U.S.C. § 551(4).
18. Id. § 553(b)-(c).
19. Id.
20. Originally, guidance documents referred to informal statements such as press releases, which seemed not to be included in the class of interpretive rules and policy statements.
21. Peter L. Strauss, The Rulemaking Continuum, 41 DUKE L.J. 1463, 1468 (1992).
22. Given that even press releases and instructions to staff generally inform regulated entities of an agency's current view of a policy or interpretation and come within the APA's definition of a rule, current parlance treats these documents as interpretive rules or policy statements.
23. Michael Asimow, Guidance Documents in the States: Toward a Safe Harbor, 54 ADMIN. L. REV. 631, 632 (2002) (calling interpretive rules and policy statements "guidance documents");
24. Mendelson, supra note 7, at 398-99 (explaining that she refers to interpretive rules and policy statements excepted from the APA notice-and-comment procedures as 'guidance documents' and listing examples).
25. Funk, supra note 5, at 659 (asserting that legislative rules have the force of law).
26. Gersen, supra note 5, at 1709 (describing some confusion of terminology, but stating that usually "a rule is termed legislative if it is legally binding").
27. Robert A. Anthony, "Interpretive" Rules, "Legislative" Rules and "Spurious" Rules: Lifting the Smog, 8 ADMIN. L.J. AM. U. 1, 14 (1994) [hereinafter Anthony, Lifting the Smog] ("[An agency] cannot lawfully attempt to compel compliance through a mere bulletin or guidance or other nonlegislative document.").
28. See infra text accompanying notes 84-85.
29. Tom C. Clark, ATT'Y GEN., U.S. DEP'T OF JUSTICE, ATTORNEY GENERAL'S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 30 n.3 (1947)
30. [hereinafter ATTORNEY GENERAL'S MANUAL] (defining interpretive rules as those 'issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers,' and general statements of policy as those 'issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power').
31. See, e.g., Nat'l Ass'n of Broadcasters v. FCC, 569 F.3d 416, 426 (D.C. Cir. 2009) (citing Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798, 807 (D.C. Cir. 2006)) (stating that in distinguishing a statement of policy from a legislative rule, 'the court looks to the effects of the agency's action, asking whether the agency has imposed any rights and obligations or has left itself free to exercise discretion'); Appalachian Power Co. v. EPA, 208 F.3d 1015, 1024 (D.C. Cir. 2000) (stating that whether a rule is interpretive depends on 'whether the interpretation itself carries the force and effect of law' (quoting Paralyzed Veterans v. D.C. Arena L.P., 117 F.3d 579, 588 (D.C. Cir. 1997))); Pac. Gas & Elec. Co. v. Fed. Power Comm'n, 506 F.2d 33, 38 (D.C. Cir. 1974) (distinguishing a substantive rule from a statement of policy on the grounds that the latter 'does not establish a 'binding norm" (quoting Reginald Parker, The Administrative Procedure Act: A Study in Overestimation, 60 YALE L.J. 581, 598 (1951))).
32. See, e.g., Ctr. for Auto Safety, 452 F.3d at 807 (comparing cases and concluding that the case law demonstrates that 'it is not always easy to distinguish between those 'general statements of policy' that are unreviewable and agency 'rules' that establish binding norms or agency actions that occasion legal consequences that are subject to review').
33. See, e.g., 7 U.S.C. § 136w (2006) (granting the Administrator of the EPA authority to issue rules to carry out provisions in the Federal Insecticide, Fungicide, and Rodenticide Act); 29 U.S.C. § 211 (2006) (granting the Administrator of the Wage and Hour Division prosecutorial power to bring all actions for injunctions to restrain violations of the Fair Labor Standards Act); id. § 659 (granting OSHRC authority to resolve contests of the Secretary of Labor's citations of violation under the Occupational Safety and Health Act); 42 U.S.C. § 2000e-5(f)(1) (2006) (granting the EEOC prosecutorial power to prevent violations of Title VII).
34. See, e.g., 21 U.S.C. §§ 371-372 (2006) (granting the FDA regulatory, adjudicatory, and prosecutorial power under the Federal Food, Drugs, and Cosmetics Act); 29 U.S.C. §§ 156-161 (granting the NLRB regulatory, prosecutorial, and adjudicatory power under the National Labor Relations Act); 42 U.S.C. §§ 7601(a), 7605, 7607 (granting the EPA regulatory, prosecutorial, and adjudicatory power under the Clean Air Act); 47 U.S.C. § 154(i)-(j) (2006) (granting the FCC regulatory, prosecutorial, and adjudicatory power to regulate wire and radio communications under the Communications Act of 1954).
35. See SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 202 (1947) ('The function of filling 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.');
36. Kenneth Culp Davis, ADMINISTRATIVE LAW TREATISE § 6.15, at 283 (Supp. 1970) ("The procedure of administrative rule making is one of the greatest inventions of modern government.");
37. Glen O. Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Procedure Reform, 118 U. PA. L. REV. 485, 505-506 (1970)
38. (stating that '[t]here are ... advantages in promulgating general regulatory policies in rulemaking proceedings,' but then proceeding to show that in particular situations, there are reasons to allow agencies to use adjudication to announce policy).
39. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (clarifying that even when an agency removes or changes a regulation, it must still supply a reasoned analysis for its decision); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (mandating that courts review agency decisions based on the record before the agency when it acted).
40. See Strauss, supra note 14, at 1466-1467 (noting that violation of a legislative rule 'may form the basis for penal consequences').
41. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265-67 (1954).
42. Thomas W. Merrill, The Accardi Principle, 74 GEO. WASH. L. REV. 569, 596 (2006) (arguing that this principle has significance for how agencies and courts treat guidance documents).
43. Technically, an agency may adopt a legislative rule without using notice-and-comment procedures if it can show good cause for why it opted to skip this process. 5 U.S.C. § 553(b)(B) (2006) (stating that notice-and-comment rulemaking does not apply 'when the agency for good cause finds ... notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest'). Successful invocation of this exception, however, requires some situationspecific explanation by the agency of why notice and comment is 'impracticable, unnecessary, or contrary to the public interest.'.
44. Kristin E. Hickman, Coloring Outside the Lines: Examining Treasury's (Lack of) Compliance with Administrative Procedure Act Rulemaking Requirements, 82 NOTRE DAME L. REV. 1727, 1780-1781 & n.244, 1783 (2007) ("Courts are often skeptical of generic assertions of the need for immediate guidance ....").
45. Richard K. Berg, Re-examining Policy Procedures: The Choice Between Rulemaking and Adjudication, 38 ADMIN. L. REV. 149, 163-164 (1986) ("Rulemaking [provides regulated entities] wider notice and broader opportunities for participation .... Such broader participation also makes rulemaking more efficient as an information-gathering technique for the agency.");
46. Mariano-Florentino Cuéllar, Rethinking Regulatory Democracy, 57 ADMIN. L. REV. 411, 414 & n.6 (2005) ("Agencies react to the notice-and-comment process by making changes in their proposed rules.");
47. Susan Webb Yackee, Sweet-Talking the Fourth Branch: The Influence of Interest Group Comments on Federal Agency Rulemaking, 16 J. PUB. ADMIN. RES. & THEORY 103, 103 (2005) (finding that agencies are responsive to consensus in public comments and make changes in final rules in response to comments).
48. David J. Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 SUP. CT. REV. 201, 231-232 (stating that pressure on agencies to provide responses to comments has caused them "to complete the bulk of their work prior to the onset of the rulemaking process");
49. Cary Coglianese et al., Transparency and Participation in the Federal Rulemaking Process: Recommendations for the New Administration, 77 GEO.WASH. L. REV. 924, 931-932 (2009) ("Many internal deliberations and policy discussions occur before an agency issues its NPRM, during a part of the process that is least open and transparent.");
50. Stephanie Stern, Cognitive Consistency: Theory Maintenance and Administrative Rulemaking, 63 U. PITT. L. REV. 589, 600 (2002) (discussing empirical evidence that agencies "lock in" to a rule once it is proposed).
51. Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 DUKE L.J. 1933, 1956-1957 (2008)
52. (arguing that repeat players can provide input well before the agency issues a notice of proposed rulemaking (NOPR)). Agencies today frequently publish an advanced NOPR, which is intended to get public comment before the agency has committed to a particular proposed course of action.
53. Barbara H. Brandon & Robert D. Carlitz, Online Rulemaking and Other Tools for Strengthening Our Civil Infrastructure, 54 ADMIN. L. REV. 1421, 1465-1466 (2002).
54. See NRDC v. EPA, 279 F.3d 1180, 1186 (9th Cir. 2002) (explaining that a final rule may deviate from a proposed rule only when "interested parties reasonably could have anticipated the final rulemaking from the [proposed rule]" (quoting NRDC v. EPA, 863 F.2d 1420, 1429 (9th Cir. 1988))).
55. Cornelius M. Kerwin & Scott R. Furlong, Time and Rulemaking: An Empirical Test of Theory, 2 J. PUB. ADMIN. RES. & THEORY 113, 124, 134-137 (1992)
56. (reviewing data showing that major EPA rules took, on average, three years from the time the rule entered the agency's regulatory-development management system and the date the final rule was issued).
57. See Chenery II, 332 U.S. 194, 202-03 (1947) (allowing the SEC to adopt a policy by adjudication, in part because 'problems may arise in a case which the administrative agency could not reasonably foresee');
58. Jeffrey J. Rachlinski, Rulemaking Versus Adjudication: A Psychological Perspective, 32 FLA. ST. U. L. REV. 529, 551 (2005).
59. (positing that the dynamic, adversarial nature of management-labor relations makes it 'difficult for an agency to foresee the consequences of any rule it might adopt').
60. Anne Joseph O'Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 VA. L. REV. 889, 953-954 (2008) (noting that, compared to independent agencies, executive agencies engage in much more regulatory activity in the last quarter of a president's term).
61. E. Donald Elliott, Re-inventing Rulemaking, 41 DUKE L.J. 1490, 1492 (1992)
62. (asserting that the wisdom of adopting policy by legislative rulemaking depends on, among other things, 'how frequently the agency anticipates the question will come up').
63. Chenery II, 332 U.S. at 203.
64. Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407, 418 (1942).
65. See, e.g., 15 U.S.C. § 78ff (2006) (specifying penalties for violations of the Securities and Exchange Act of 1934); 33 U.S.C. § 1319 (2006) (specifying penalties for violations of the Clean Water Act); 47 U.S.C. §§ 501-502 (2006) (specifying penalties for violations of the Communications Act of 1934); 49 U.S.C. §§ 46301-46304 (2006) (specifying penalties for violations of airline safety regulations).
66. If a statute requires an agency to issue an order based on the record after opportunity for a hearing, the APA requires the agency to use trial-type formal procedures. 5 U.S.C. §§ 554, 556-557 (2006).
67. Id. § 556(d).
68. See Office of Commc'n of the United Church of Christ v. FCC, 359 F.2d 994, 1000-06 (D.C. Cir. 1966) (holding that a group whose members listen to a radio station have the right to participate in a hearing on whether to relicense the station); see also 5 U.S.C. § 555(b) ('So far as the orderly conduct of public business permits, an interested person may appear before an agency ... for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding ....'). However, particular provisions of the statute authorizing the adjudication may restrict who may participate. See, e.g., Envirocare of Utah, Inc. v. Nuclear Regulatory Comm'n, 194 F.3d 72, 75, 77-78 (D.C. Cir. 1999) (holding that even though a statute required an agency to grant intervenor status to 'any person whose interest may be affected by the proceeding,' the agency could deny such status to an already-licensed competitor of the entity seeking a license (internal quotation marks omitted)).
69. See Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 653-56 (1990) (holding that the only requirements the APA imposes on informal adjudications are contained in § 555, which sets out 'minimal requirements'). If the agency order denies liberty or property, then the Due Process Clause will mandate the minimum procedure that agency must use in the adjudication. E.g., Mathews v. Eldridge, 424 U.S. 319, 332-33 (1976).
70. 5 U.S.C. § 535(b)(A) (stating that notice is not required prior to the issuance of 'interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice').
71. Colin S. Diver, Policymaking Paradigms in Administrative Law, 95 HARV. L. REV. 393, 431-434 (1981) (analyzing when synoptic versus incremental approaches to regulation are appropriate).
72. 416 U.S. 267 (1974).
73. Id. at 294-295.
74. Id.
75. Essentially, Bell balanced the agency interest in proceeding by adjudication against the adverse consequences to reliance interests. The Court deferred to the implicit determination by the agency that retroactive application was sufficiently important and downplayed reliance interests because there was no showing 'that the adverse consequences ensuing from such reliance are so substantial that the Board should be precluded from reconsidering the issue in an adjudicative proceeding.' Id.
76. Kieran Ringgenberg, United States v. Chrysler: The Conflict Between Fair Warning and Adjudicative Retroactivity in D.C. Circuit Administrative Law, 74 N.Y.U. L. REV. 914, 923 & nn.60-64 (1999) (summarizing cases in which the D.C. Circuit evaluated the retroactive application of changed agency interpretations).
77. See, e.g., Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 1095, 1102 (D.C. Cir. 2001) (stating that retroactive application of interpretations are limited to 'new applications of [existing] law, clarifications, and additions' (alteration in original) (citations omitted)); Verizon Tel. Cos. v. FCC, 269 F.3d 1098, 1109 (D.C. Cir. 2001) ('In the ensuing years, in considering whether to give retroactive application to a new rule, the courts have held that the governing principle is that when there is a substitution of new law for old law that was reasonably clear, the new rule may justifiably' [not be given retroactive effect, but] [b]y contrast, retroactive effect is appropriate for new applications of [existing] law, clarifications, and additions.' (third alteration in original) (internal quotation marks omitted)); Williams Natural Gas Co. v. FERC, 3 F.3d 1544, 1554 (D.C. Cir. 1993) (holding that when an agency substitutes new law for old, 'it may be necessary to deny retroactive effect to a rule announced in an agency adjudication in order to protect the settled expectations of those who had relied on the preexisting rule').
78. Michael Asimow, Public Participation in the Adoption of Interpretive Rules and Policy Statements, 75 MICH. L. REV. 520, 529-530 (1977) (noting that agency staff members universally oppose a statutory notice-and-comment requirement for guidance documents because they fear it would add to delay and agency costs, often with no concomitant benefit).
79. 5 U.S.C. § 552(a)(1)(D) (2006).
80. The APA provides that '[e]xcept to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be ... adversely affected by[] a matter required to be published in the Federal Register and not so published.' Id. § 552(a)(1). Additionally, a statement of policy or interpretation may be 'used, or cited as precedent by an agency against a party ... only if-(i) it has been indexed and either made available or published as provided by this paragraph; or (ii) the party has actual and timely notice of the terms thereof.' Id. § 552(a)(2).
81. See Franklin, supra note 4, at 306 (arguing that too parsimonious a view of exceptions from notice and comment for guidance documents will induce agencies to shift to policy making through adjudication).
82. To the extent that investments made prior to announcement of new policy or interpretation may be undermined by the change, legislative rulemaking usually would protect reliance interests better than guidance documents because of the delay between notice of proposed rulemaking and the issuance of a final rule. But this is merely a silver lining to the cloud of delay inherent in noticeand- comment proceedings. Moreover, increased protection of reliance interests by legislative rules is somewhat arbitrary in that investments made after the NOPR, although often not in reasonable reliance on the old rule, will also be protected by the delay.
83. See Strauss, supra note 2, at 808 (arguing that citizens are better off knowing the instructions central officials give to those implementing the law than if implementation is 'remitted to the discretion of local agents and to 'secret law").
84. See Heckler v. Chaney, 470 U.S. 821, 832 (1985) (concluding that agency decisions not to bring particular prosecutions generally are exempt from review under the APA because they are 'committed to agency discretion').
85. See Strauss, supra note 2, at 808 ('Agency administration is aided when central officials can advise responsible bureaucrats how they should apply agency law.').
86. See Asimow, supra note 52, at 574-75 (summarizing how public participation benefits rulemaking);
87. Stephen M. Johnson, Good Guidance, Good Grief!, 72 MO. L. REV. 695, 702-703 (2007) (arguing that public participation is important to prevent capture, provide information to agencies, and instill a sense of legitimacy).
88. Cornelius M. Kerwin & Scott R. Furlong, RULEMAKING: HOW GOVERNMENT AGENCIES WRITE LAW AND MAKE POLICY 200 (4th ed. 2011)
89. (reporting that agencies may seek information from interest groups that they believe have superior information); Asimow, supra note 52, at 575 (explaining that agencies need information gathered through public participation to interpret laws and regulations); Mendelson, supra note 7, at 426 (observing that the EPA's 2003 Public Involvement Policy seeks to engage the public on proposed policies by encouraging officials to reach out to the public).
90. Mendelson, supra note 7, at 424-25 (arguing that avoiding notice-and-comment procedures are more likely to exclude regulatory beneficiaries than regulated entities);
91. William F. West, Formal Procedures, Informal Processes, Accountability, and Responsiveness in Bureaucratic Policy Making: An Institutional Policy Analysis, 64 PUB. ADMIN. REV. 66, 70 (2004)
92. (observing that agency consultation with outside-interest representatives prior to issuing notices of proposed rules 'was bounded by administrators' past experience and by their sense of who the significant players were').
93. Essentially, this is analogous to the point made that even if guidance documents are not reviewable when issued, they will be subject to review when applied. See, e.g., Gersen, supra note 5, at 1721 (arguing that the Supreme Court's decision in United States v. Mead Corp., 533 U.S. 218 (2001), makes the legislative-rule doctrine consistent with agency choice and flexibility by providing incentives for using formal procedures in substantively important interpretations).
94. See Stern, supra note 30, at 597 ('The timing of rulemaking encourages agency lock-in by concentrating the bulk of decisionmaking in the pre-notice period.').
95. This is consistent with cases reviewing whether issuances of purported policy statements are procedurally invalid, because such review addresses whether the statement truly is a guidance document. See, e.g., Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 228 (D.C. Cir. 2007) (finding that an EPA guidance document was a nonbinding policy statement and that review of such was outside the court's jurisdiction); Gen. Elec. Co. v. EPA, 290 F.3d 377, 385 (D.C. Cir. 2002) (holding that an EPA guidance document was in fact a legislative rule rather than a policy document and that, as such, the EPA was required to comply with the procedural requirements of the APA).
96. See Johnson, supra note 60, at 703 (identifying the risk that nonlegislative rules might become law through exerting a coercive effect on the regulated community resulting in compliance or through agencies treating the nonlegislative rules as binding);
97. Jessica Mantel, Procedural Safeguards for Agency Guidance: A Source of Legitimacy for the Administrative State, 61 ADMIN. L. REV. 343, 344-345 (2009) (using a hypothetical scenario to illustrate the potential coercive effect of guidance).
98. See Office of Mgmt. & Budget, Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432, 3435 (Jan. 25, 2007) (explaining that guidance documents 'could affect behavior in a way that might lead to an economically significant impact').
99. James T. Hamilton & Christopher H. Schroeder, Strategic Regulators and the Choice of Rulemaking Procedures: The Selection of Formal vs. Informal Rules in Regulating Hazardous Waste, LAW & CONTEMP. PROBS., Spring 1994, at 111, 130-132
100. (hypothesizing that agencies will use informal rulemaking to avoid judicial oversight and political cost); Mendelson, supra note 7, at 408 (concluding that agencies can use guidance documents to 'obtain a rule-like effect while minimizing political oversight and avoiding the procedural discipline, public participation, and judicial accountability required by the APA').
101. See Franklin, supra note 4, at 308-09 (asserting that policies that ease potential regulatory burdens may be implemented without further judicially reviewable agency action); Mendelson, supra note 7, at 420-24 (same).
102. Heckler v. Chaney, 470 U.S. 821, 831-33 (1985).
103. During the early stages of developing the APA, the final report of the Attorney General's Committee on Administrative Procedure described general statements of policy as follows: Most agencies develop approaches to particular types of problems, which, as they become established, are generally determinative of decisions.... As soon as the 'policies' of an agency become sufficiently articulated to serve as real guides to agency officials in their treatment of concrete problems, that fact may advantageously be brought to public attention by publication in a precise and regularized form. ATT'Y GEN.'S COMM. ON ADMIN. PROCEDURE, FINAL REPORT 26-27 (1941). Dissenters from this report, however, proposed that '[w]here an agency, acting under general or specific legislation, has formulated or acts upon general policies not clearly specified in legislation, so far as practicable such policies shall be formulated, stated, published, and revised in the same manner as other rules.' Id. at 225 (minority report).
104. See, e.g., Asimow, supra note 52, at 578 (recommending in 1977 that Congress require 'postadoption public participation for nonlegislative rules');
105. Charles H. Koch, Jr., Public Procedures for the Promulgation of Interpretative Rules and General Statements of Policy, 64 GEO. L.J. 1047, 1061 (1976) (arguing that fairness requires courts to prescribe additional procedures for formulating rules and policy).
106. 435 U.S. 519 (1978).
107. Id. at 543.
108. See Anthony, supra note 2, at 1317-18 (noting that the ease of issuing guidance documents and the ability to avoid public and judicial scrutiny have led agencies to abuse them).
109. Id. at 1332-55 (detailing numerous examples of guidance documents that Anthony thinks should have been adopted as legislative rules, if at all).
110. Robert A. Anthony, Commentary, A Taxonomy of Federal Agency Rules, 52 ADMIN. L. REV. 1045, 1047 (2000)
111. [hereinafter Anthony, Taxonomy] (approving of the invalidation of agency documents that obtain binding effect without having gone through notice-and-comment procedures); Anthony, Lifting the Smog, supra note 17, at 10 & n.31 (citing cases for the proposition that a noninterpretive agency document that is given binding effect will be invalidated if it was not issued through the use of legislative rulemaking procedures);
112. Robert A. Anthony, "Well, You Want the Permit, Don't You?" Agency Efforts to Make Nonlegislative Documents Bind the Public, 44 ADMIN. L. REV. 31, 34 (1992) [hereinafter Anthony, Want the Permit?] (advocating the rejection of agency efforts to impose binding obligations on the public through nonlegislative documents);
113. Robert A. Anthony, Which Agency Interpretations Should Bind Citizens and the Courts?, 7 YALE J. ON REG. 1, 57-58 (1990)
114. (rebuking agency attempts to bind the public through documents that are exempt from public participation requirements). Courts, especially the D.C. Circuit, have been influenced by Anthony's scholarship. See, e.g., infra notes 82-84, 98-103 and accompanying text.
115. Compare Anthony, Lifting the Smog, supra note 17, at 11-12 (proposing two key inquiries to be made in determining how to categorize a nonlegislative rulemaking document), with id. at 17 (lauding the four-step test to determine whether an interpretive rule has legal effect, which was set out by Judge Williams in American Mining Congress v. Mine Safety & Health Administration, 995 F.2d 1106, 1112 (D.C. Cir. 1993)).
116. See Anthony, Taxonomy, supra note 77, at 1047 (claiming that an agency document that establishes fixed criteria for decisions has binding effect and, consequently, cannot be a policy statement).
117. See id. at 1046 (claiming that interpretive rules merely spell out or explain inherent substance in the law that is being interpreted).
118. See Anthony, Want the Permit?, supra note 77, at 34 (arguing that a rule issued with intent to bind the public, or that practically does bind the public, is not exempt from notice-and-comment requirements); Franklin, supra note 4, at 288-89 ('[A]ll [proposals for reform] of ... the legislative/nonlegislative distinction ... require courts to divine the substantive nature of a rule-by examining its ... effect.').
119. See, e.g., Nat'l Mining Ass'n v. Sec'y of Labor, 589 F.3d 1368, 1372 (11th Cir. 2009) (highlighting a document's use of permissive language as indicative of policy statements); Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000) (holding that a disclaimer at the end of a 'guidance' document did not counteract obligations imposed by the document on regulators and regulated entities); Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 947 (D.C. Cir. 1987) (holding that language used by an agency to describe action levels indicated that those levels had a binding effect); Am. Trucking Ass'ns v. ICC, 659 F.2d 452, 463 (5th Cir. 1981) (holding that policy statements must allow agencies discretion in decision making); see also Anthony, supra note 2, at 1328-29 ('If the document is couched in mandatory language, or in terms indicating that it will be regularly applied, a binding intent is strongly evidenced.' (footnotes omitted)).
120. See, e.g., Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 226 n.14 (D.C. Cir. 2007) (noting that policy statements have no binding effect and leave decision makers free to exercise discretion); Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (stating that the three factors that determine the nature of an agency document are how the document is characterized by the promulgating agency, whether the document was published in the Code of Federal Regulations or the Federal Register, and whether the document binds the agency or private parties). Generally, courts give little weight to an agency assertion that it intended a document to be guidance. E.g., Appalachian Power, 208 F.3d at 1023 (disregarding a 'boilerplate' disclaimer at the end of a purported EPA 'guidance' document).
121. See supra notes 19-20 and accompanying text.
122. See supra notes 19-20 and accompanying text.
123. See Anthony, supra note 2, at 1328-29, 1383 (stating that a guidance document is practically binding 'if the affected private parties are reasonably led to believe that failure to conform will bring adverse consequences, such as an enforcement action or denial of an application[;] ... the document is couched in mandatory language, or in terms indicating that it will be regularly applied[;] ... [or] private parties can rely on it as a norm or safe harbor by which to shape their actions' (footnotes omitted)).
124. See, e.g., Gen. Elec. Co. v. EPA, 290 F.3d 377, 384 (D.C. Cir. 2002) (holding that particular directives in an EPA guidance document made the document 'purport to bind applicants for approval of a risk-based cleanup plan'); Appalachian Power, 208 F.3d at 1023 (holding that the result of policies expressed in an EPA guidance document-requiring state regulators to search for and replace deficiencies in their monitoring regulations-was to create obligations on the part of state regulators and entities regulated by the states). But see Nat'l Mining Ass'n, 589 F.3d at 1372 (holding that language was permissive rather than mandatory because the statement used the terms 'strongly encouraged' and 'should' instead of 'shall').
125. See, e.g., Catawba Cnty. v. EPA, 571 F.3d 20, 34-35 (D.C. Cir. 2009) (holding that an agency memo creating a rebuttable presumption that preserved the agency's discretion did not bind the agency, thus freeing the memo from notice-and-comment requirements); Gen. Elec., 290 F.3d at 385 (vacating a guidance document because it bound the EPA to accept a particular total toxicity factor from cleanup-plan applicants); Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (noting that a key distinction between a substantive rule and a policy statement is whether an agency intends to bind itself to a legal position).
126. See, e.g., Gen. Elec., 290 F.3d at 384 ('To the applicant reading the Guidance Document the message is clear: in reviewing applications the Agency will not be open to considering approaches other than those prescribed in the Document.').
127. Ronald M. Levin, Nonlegislative Rules and the Administrative Open Mind, 41 DUKE L.J. 1497, 1501 & n.17 (1992)
128. ('To the extent that [a policy] statement contains adequate answers to the challenger's contentions, the agency certainly may consult it and cite to it, so long as the agency also gives full attention to any issues raised for the first time in the current proceeding.').
129. Cf. id. at 1499-502 (arguing from the case law for an administrative 'openmindedness' obligation). Administrative precedent may also allow an agency to avoid considering arguments that the petitioner could have raised in a prior challenge before the agency but did not. E.g., NRDC v. EPA, 25 F.3d 1063, 1074 (D.C. Cir. 1994) (denying petition because a petitioner's 'failure to raise a particular question of statutory construction before an agency constitutes waiver').
130. 7 U.S.C. § 2143(a) (2006).
131. 9 C.F.R. § 3.81 (2011).
132. See, e.g., id. § 3.81(a) ('The environment enhancement plan must include specific provisions to address the social needs of nonhuman primates ....').
133. William Funk, A Primer on Nonlegislative Rules, 53 ADMIN. L. REV. 1321, 1333-1335 (2001) (reviewing judicial difficulty in predicting how agencies will apply policy statements and explaining how agencies game the law by couching definitive statements in tentative language).
134. See, e.g., Noel v. Chapman, 508 F.2d 1023, 1029-30 (2d Cir. 1975) (describing the distinction between a '[legislative] rule ... and a 'general statement of policy" as 'enshrouded in considerable smog'); see also Anthony, Lifting the Smog, supra note 17, at 4 n.10 (listing numerous cases stating that the distinction between legislative and interpretive rules is not clear);
135. Richard W. Murphy, Hunters for Administrative Common Law, 58 ADMIN. L. REV. 917, 924 (2006) (noting "the infamously 'smoggy' nature of the distinction between legislative and interpretive rules").
136. Gen. Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984). Courts will often characterize guidance documents that are not clarifications of language nonetheless as interpretive, and then uphold them even though they are sufficiently definitive that a court almost certainly would reverse them were they characterized as policy statements.
137. John F. Manning, Nonlegislative Rules, 72 GEO. WASH. L. REV. 893, 926-927 (2004) (evaluating the D.C. Circuit's method of identifying "procedurally invalid nonlegislative rules" and observing that "the resulting inquiry has an air of arbitrariness to it").
138. Air Transp. Ass'n of Am., Inc. v. FAA, 291 F.3d 49, 55 (D.C. Cir. 2002) (quoting Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 588 (D.C. Cir. 1997)).
139. E.g., Warshauer v. Solis, 577 F.3d 1330, 1337 (11th Cir. 2009) (reasoning that an interpretive rule "typically reflects an agency's construction of a statute ...' and does not 'modif[y] or add[] to a legal norm" (alterations in original) (quoting Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 94-95 (D.C. Cir. 1997))).
140. Id. Courts sometimes purport to consider other factors that bear on an agency's intent to create an independent legal obligation, such as whether the agency states that it is invoking its legislative rulemaking authority or whether it published the rule in the Code of Federal Regulations. E.g., Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993). But in the absence of a telltale indication that the agency intended to invoke its legislative rulemaking authority, the relationship of the interpretation to the text being interpreted is dispositive. See Air Transp. Ass'n, 291 F.3d at 55-56 (analyzing an interpretive rule in relation to the pertinent statute and concluding that the rule 'incorporate[s] both the statutory requirement ... and required rest regulations' and therefore 'does not require notice-and-comment rulemaking').
141. Paralyzed Veterans, 117 F.3d at 588.
142. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023, 1028 (D.C. Cir. 2000) (setting aside an EPA guidance document in part because the guidance document imposes legal obligations).
143. See, e.g., Am. Mining Cong., 995 F.2d at 1112-13 (holding that Program Policy Letters of the Mine Safety and Health Administration are 'interpretive rules' even though the court admits that it is possible that the Program Policy Letters are 'a de facto amendment of prior legislative rules'); Fertilizer Inst. v. EPA, 935 F.2d 1303, 1307-09 (D.C. Cir. 1991) (reasoning that even though the EPA's action had the 'effect of creating new duties' beyond the language of the statute, the action was nonetheless interpretive because the agency did not "intend[] to create new ... duties" (quoting Gen. Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984))).
144. See supra notes 84-86 and accompanying text.
145. The relevant language in full reads as follows: A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if-(i) it has been indexed and either made available or published as provided by this paragraph [in the Federal Register]; or (ii) the party has actual and timely notice of the terms thereof. 5 U.S.C. § 552(a)(2) (2006). Peter Strauss reads this provision as indicating that guidance documents have precedential effect. See Strauss, supra note 2, at 823-24 (arguing that § 552(a)(2) permits an agency to give publication rules the force of precedent by listing them together with agency precedent and by describing the permitted effect 'in a way that sounds like the treatment of precedent'). John Manning disagrees, noting that the point of the provision was to limit the effect of the various actions specified and that the provision does not state that each specified action has all of the specified effects. Manning, supra note 97, at 934-35 & n.207. Nonetheless, Manning agrees that Strauss's reading is consistent with this provision of the APA. Id. More significantly for my point, Manning's argument implies that each of the specified actions, including guidance documents, has to have at least one of the specified effects, which means that these documents must be capable of being used against a party.
146. 5 U.S.C. § 552(a).
147. Freedom of Information Act, Pub. L. No. 90-23, sec. 1, § 552(a), 81 Stat. 54, 54-55 (1967) (codified as amended at 5 U.S.C. § 552(a)).
148. See Gersen, supra note 5, at 1718-19 (proclaiming that the legislative-rule inquiry should center on whether notice-and-comment procedures were followed rather than if the rule is 'tied closely enough to a preexisting regulation,' because doing so would be 'unnecessarily difficult'); Manning, supra note 97, at 926-27 (arguing that judicial inquiry into whether an agency should have used notice and comment is judicially unmanageable because no articulable standard determines how much agency policy-making discretion should mandate the use of notice and comment).
149. See Gersen, supra note 5, at 1719 (noting that all guidance documents will affect the public in some manner, which is why agencies issue them); Strauss, supra note 14, at 1479 (contending that nonlegislative rules can be argued to have a practical binding effect 'in most, if not all, cases').
150. Presumably, an agency could issue a guidance document that is so ambivalent as to have no effect, but then it also would not convey anything about the agency's current view of the matter addressed. See Funk, supra note 95, at 1335 (noting that an agency's inclusion of language making a policy statement tentative renders the statement useless if taken at face value because it will 'not communicate any intention at all').
151. See supra notes 55-57 and accompanying text.
152. See Funk, supra note 5, at 663 ('The simple test, which we will call the 'notice-andcomment test,' is simply that any rule not issued after notice and comment is an interpretive rule or statement of policy, unless it qualifies as a rule exempt from notice and comment on some other basis.'); Gersen, supra note 5, at 1719 ('Rather than asking whether a rule is legislative to answer whether notice-and-comment procedures should have been used, courts should simply ask whether notice-and-comment procedures were used.'); cf. Elliott, supra note 36, at 1491 (contending that when an agency improperly relies upon a rule that was adopted without the proper notice-andcomment procedure, the rule should be treated like a nonbinding policy statement rather than being invalidated in its entirety by the court). Implicit in this test is that the rule is not otherwise exempt from notice-and-comment requirements for other reasons, for example, because the rule is procedural or the agency has explicitly availed itself of the good-cause exception. See 5 U.S.C. § 553(b) (2006) (exempting from notice and comment 'rules of agency organization, procedure, or practice' and rules where 'the agency for good cause finds [and explicitly states its reasons] that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest').
153. The D.C. Circuit at one time followed this approach. E.g., Pac. Gas & Elec. Co. v. Fed. Power Comm'n, 506 F.2d 33, 38 (D.C. Cir. 1974) ('The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings.... A general statement of policy ... does not establish a 'binding norm."). Some judges occasionally suggest reinstating this approach. See, e.g., Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 950, 951-52 (D.C. Cir. 1987) (Starr, J., concurring in part and dissenting in part) (lamenting the progress to a multifactor test and cajoling the D.C. Circuit to 'reembrace' the Pacific Gas test).
154. See Gersen, supra note 5, at 1714-15 ('Some mechanism is needed to distinguish interpretation appropriate for informal settings from interpretation only appropriate for formal settings.'); Manning, supra note 97, at 924 (explaining the insight of the Chevron doctrine as recognition that interpretation always involves some lawmaking and some law explication).
155. Manning, supra note 97, at 898.
156. Id. at 901 (citing Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474-75 (2001)).
157. Id. at 912 (footnote omitted).
158. See Elliott, supra note 36, at 1491 ('[I]f an agency says initially that a policy statement is not a binding rule and then later treats it as if it were a binding rule by refusing to engage in genuine reconsideration of its contents in a subsequent case, a court should invalidate the agency's action in the individual particular case on the basis that the action lacks sufficient justification in the record.').
159. See Manning, supra note 97, at 930-31 (noting that courts can effectively enforce the distinction between legislative and nonlegislative rules by 'assigning different legal effects to an agency's application of rules' adopted without notice and comment).
160. See id. at 932-33 (explaining how review under a reasoned-decisionmaking standard would prevent an agency from relying on a guidance document as if it had independent legal force).
161. 323 U.S. 134 (1944).
162. 467 U.S. 837 (1984).
163. Timothy K. Armstrong, Chevron Deference and Agency Self-Interest, 13 CORNELL J.L. & PUB. POL'Y 203, 205 n.3 (2004) (reporting that informal pronouncements that are not the product of rulemaking or adjudicatory proceedings may not be entitled to Chevron deference but may still receive a degree of judicial respect under Skidmore).
164. See Gersen, supra note 5, at 1720-1721 (arguing that the agency incentive to avoid noticeand- comment procedures is mitigated by the less deferential review that guidance documents receive under United States v. Mead Corp., 533 U.S. 218 (2001)); cf. Manning, supra note 97, at 943-944 (concluding that Mead's rule of reduced deference for interpretations in guidance documents is not likely to have a major impact on agencies' choice of interpretive mode).
165. The courts have adopted a reasoned-decisionmaking approach to arbitrary and capricious review. See FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1810 (2009) (emphasizing that an agency need only have some reasonable justification for its policy changes but that the Court will not subject these agency decisions to any more searching review); Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (noting that an agency 'is obligated to supply a reasoned analysis' for policy changes);
166. Jim Rossi, Redeeming Judicial Review: The Hard Look Doctrine and Federal Regulatory Efforts to Restructure the Electric Utility Industry, 1994 WIS. L. REV. 763, 774 (explaining that under the hard-look doctrine courts "examine an agency's decision to determine whether the agency has explained the basis for its rule");
167. Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking, 75 TEXAS L. REV. 483, 491-492 (1997) (describing the operational demands of hard-look review); Cass R. Sunstein, Deregulation and the Hard-Look Doctrine, 1983 SUP. CT. REV. 177, 181-82 (describing the development of hard-look review).
168. Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 COLUM. L. REV. 1749, 1761 (2007)
169. (examining the doctrine as applied in the 1970s, and arguing that 'the hard look doctrine promoted participation by encouraging agencies to respond to criticisms and show why they had rejected alternative solutions');
170. Mark Seidenfeld, Cognitive Loafing, Social Conformity, and Judicial Review of Agency Rulemaking, 87 CORNELL L. REV. 486, 546 (2002) (asserting that hard-look review forces an agency "to take into account perspectives that may be held by those with different professional training and whose work might focus on different effects of the rule").
171. See Manning, supra note 97, at 934-35 (arguing that precedential effect of guidance documents follows from the reasoned-decisionmaking requirement of judicial review); Strauss, supra note 14, at 1486 (suggesting that provisions of the Freedom of Information Act, included as part of the APA, indicate that guidance documents have precedential effect).
172. See Manning, supra note 97, at 935-36 (noting that the latitude afforded to agencies to reconsider policies adopted in adjudication is limited by the court-imposed reasoneddecisionmaking requirement that agencies 'adhere to their precedents unless they offer a sufficient justification for departing from them').
173. See id. at 932-34 (illustrating by example that relying on agency precedent is insufficient and requires additional reasoning).
174. See State Farm, 463 U.S. at 46-47 (reasoning that the decision of the National Highway Traffic Safety Administration to eliminate a motor vehicle safety regulation was arbitrary and capricious because the agency did not consider modifying the regulation instead); Seidenfeld, supra note 125, at 485 ('[T]he agency cannot know in advance what issues and arguments a reviewing court will deem to warrant extended analysis and explanation.'); Sunstein, supra note 125, at 182 ('The APA does not expressly require identification and consideration of alternatives, as do some statutes, but courts have held that it is nonetheless 'arbitrary' within the meaning of the APA to disregard plausible alternatives.').
175. Ignoring a plausible argument would contravene the Supreme Court's admonition that a decision is arbitrary and capricious if it fails to consider relevant factors. See, e.g., State Farm, 463 U.S. at 53-54 (holding an agency decision to rescind an automobile-passive-restraint standard arbitrary and capricious in part because the agency failed to consider the effect of inertia on the likelihood that people would use automatic seatbelts); Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 241 (D.C. Cir. 2008) (reversing the agency because the Commission's conclusory statement that newly submitted data would not provide a convincing argument for modifying the analysis underlying its action 'provides neither assurance that the Commission considered the relevant factors nor a discernable path to which the court may defer').
176. See Levin, supra note 90, at 1502 (suggesting that the agency can rely on facts learned when it developed the guidance document in defending its application).
177. Manning, supra note 97, at 934.
178. See supra notes 65-70 and accompanying text.
179. See supra note 30.
180. Franklin, supra note 4, at 294.
181. Franklin, supra note 4.
182. Id. at 324-325.
183. Id. at 278-279.
184. Id. at 325.
185. See id. at 324 (contending that under the ex-post-monitoring approach, agencies would 'too often sidestep the public input that is necessary to protect the interests of regulatory beneficiaries, to lay the foundation for meaningful hard-look review, and, more generally, to ensure a relatively participatory and accountable form of regulatory governance').
186. Id. Franklin labels the ex-post-monitoring approach as "the short cut." Id. at 279.
187. Id. at 309.
188. th Cir. 1983) (reversing the FERC's refusal to allow Shell new gas prices for 'sidetracking' wells, because the FERC had not allowed Shell an opportunity to challenge factual assumptions made in the case establishing the policy). Franklin asserts that it is 'very difficult for subsequent parties to dislodge [policies previously adopted in adjudications],' but cites no support for this proposition. Franklin, supra note 4, at 313.
189. 533 U.S. 218 (2001).
190. Id. at 229-230, 234-236.
191. Franklin, supra note 4, at 321.
192. 545 U.S. 967 (2005).
193. See id. at 1016 (Scalia, J., dissenting) (arguing that one interpretation of the majority's holding is that 'judicial decisions [are] subject to reversal by executive officers'). Justice Scalia goes on to illustrate this assertion: Imagine the following sequence of events: FCC action is challenged as ultra vires under the governing statute; the litigation reaches all the way to the Supreme Court of the United States. The Solicitor General sets forth the FCC's official position (approved by the Commission) regarding interpretation of the statute. Applying Mead, however, the Court denies the agency position Chevron deference, finds that the best interpretation of the statute contradicts the agency's position, and holds the challenged agency action unlawful. The agency promptly conducts a rulemaking, and adopts a rule that comports with its earlier position-in effect disagreeing with the Supreme Court concerning the best interpretation of the statute. According to today's opinion, the agency is thereupon [entitled to Chevron deference and] free to take the action that the Supreme Court found unlawful. Id. at 1016-17.
194. 325 U.S. 410 (1945).
195. Franklin, supra note 4, at 322-23. I agree with Franklin that the entire debate over the influence of deference afforded to statutory interpretation seems overemphasized given that the difference in deference between the standards is not necessarily great.
196. Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 COLUM. L. REV. 1235, 1275 (2007)
197. (finding empirically that 'Skidmore is relatively deferential as applied by the federal courts of appeals,' which accept the agency's interpretation 60.4% of the time). Moreover, the question of Chevron versus Skidmore deference only arises for agency interpretations of statutes rather than regulations, and then only when such interpretations are subjected to judicial review. Cf. Manning, supra note 97, at 943 (concluding that 'Mead's net effect on agency deliberation may ultimately be quite small').
198. See Manning, supra note 97, at 926-27 (describing several cases in which courts have deemed rules interpretive despite the so-called interpretation not being tied to the language being interpreted).
199. Franklin, supra note 4, at 325 & nn.254-255.
200. See, e.g., Heckler v. Chaney, 470 U.S. 821, 831 (1985) (listing factors that make a decision unsuitable for judicial review, including 'whether agency resources are best spent on this [action] or another, whether the agency is likely to succeed if it acts, whether the particular ... action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all')
201. Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 MINN. L. REV. 689, 716 (1990) (stating that even proponents of broad judicial review "concede that the managerial nature of agencies' decisions about how they can best deploy scarce resources warrants considerable solicitude from the courts");
202. Antonin Scalia, Responsibilities of Regulatory Agencies Under Environmental Laws, 24 HOUS. L. REV. 97, 106-107 (1987)
203. (contending that it is not that courts cannot balance the factors as well as anyone else but rather that the balance is inherently political-justifying nonreviewability of regulatory priorities and use of resources).
204. This point, I think, is related to John Manning's argument that determining the tolerable extent of discretionary lawmaking without use of legislative rulemaking procedures is inherently judicially unmanageable. See Manning, supra note 97, at 896-97 (observing that the Supreme Court's 'reluctance to impose even a mild rulemaking obligation upon agencies may reflect judicial administrability concerns similar to those that deter judges from enforcing the nondelegation doctrine'). Manning's argument depends on distinguishing this determination from other judicial line drawing. For me, the distinction is the complexity and value-laden nature of the factors that courts have to balance to determine for any particular rule whether notice-and-comment procedures should have been used. Manning's comparison with the nondelegation doctrine is apt because judicial enforcement of that doctrine would essentially require courts to prioritize those matters that are sufficiently important that they must be addressed by the legislature instead of being delegated to an agency. See id. ('To enforce a meaningful rulemaking requirement, reviewing courts would not only have to compel the adoption of rules, but would also have to tell the agency how precise such rules must be. Such analysis would closely approximate that which the Court has refused to take on in the nondelegation context ....'). The nondelegation issue too can be characterized as involving judicial prioritizing of a political branch's use of its resources.
205. See, e.g., Gen. Elec. Co. v. EPA, 290 F.3d 377, 382-83 (D.C. Cir. 2002) (stating that an administrative rule is legally binding if either its language appears binding on its face or if the rule is implemented as binding by the agency); see also Funk, supra note 95, at 1326-31 (listing several factors courts have considered in determining whether a rule is 'legally binding' and thus subject to notice-and-comment procedures).
206. Compare, e.g., Gen. Elec., 290 F.3d at 383-85 (striking down an EPA rule as legislative because it contained mandatory language requiring specific behavior from the agency and regulated entities), with Prof'ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 601 (5th Cir. 1995) (upholding a rule as nonlegislative because its nonexclusive list of 'broad, general, [and] elastic' factors for agency staff to consider was discretionary).
207. Matthew C. Stephenson, The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations, 120 HARV. L. REV. 528, 530-531 & nn.2-3 (2006)
208. (arguing that agencies engage in strategic substitution, trading administrative costs for increased judicial deference when facing strained 'textual plausibility,' because 'courts often give an agency more substantive latitude when the agency promulgates an interpretive decision via an elaborate formal proceeding than when it announces its interpretation in a more informal context').
209. The less the interpretation follows from the language being interpreted, the more likely it is that a court will find it to be a substantively invalid interpretation. Cf. id. at 537-39 (suggesting that courts take the 'textual plausibility' of statutory interpretations into consideration when deciding whether to uphold agencies' interpretations). But if the interpretation is not substantively valid, then the agency may not adopt it regardless of the mode used for the adoption. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 1004 (2005) (Breyer, J., concurring) (observing that courts would not apply Chevron even when reviewing some formal proceedings 'because Congress intended not to leave the matter up to the agency').
210. th Cir. 2003) (evaluating a movie-theater quantitative-viewing-angles requirement under the ADA adopted without notice and comment). In both cases the reviewing courts held that interpretive rules were adequate because the agency could have proceeded by adjudication. See Shalala, 514 U.S. at 96-97 ('The APA does not require that all the specific applications of a rule evolve by further, more precise rules rather than by adjudication.'); Cinemark, 348 F.2d at 580 (reasoning that the choice between rulemaking and adjudication is within agency discretion). In essence, these holdings reflect the understanding that striking down a guidance document for failure to use noticeand- comment proceedings would be fruitless because the agency would still be able to adopt the interpretation in the particular case. And given that the courts upheld the interpretations in both cases as ones that the agency could have adopted for the first time in the very case under review, they represent laudatory use of guidance documents to give parties notice and to assure consistency of the interpretations rather than springing them by surprise on regulated entities in enforcement proceedings.
211. 394 U.S. 759 (1969).
212. Id. at 761-762 (plurality opinion).
213. Id. at 763.
214. Id. at 766.
215. Id. at 764-766.
216. Id. at 766.
217. Three Justices concurred, deeming the Board's procedures in Excelsior proper because the resulting 'rule' was really just an interpretation validly announced as part of an order. Id. at 767-770 (Black, J., concurring). The concurrence did object to the plurality holding the Excelsior decision procedurally deficient while still allowing the Board to rely on it. Id. But the concurrence's objection hinged on the fact that the interpretation 'was not adopted as an incident to the decision of a case before the agency.' Id. at 769-770. Had the Board simply imported its reasoning from Excelsior to explain why its interpretation was appropriate in the context of the Wyman-Gordon case, presumably the concurrence would not have leveled this objection. Justice Douglas dissented because he deemed the Excelsior rule to have been adopted by improper procedures and believed that prevented the Board from relying on it. Id. at 776-777 (Douglas, J., dissenting). But he clearly states that had 'the Board decided to treat each case on its special facts and perform its adjudicatory function in the conventional way, we should have no difficulty in affirming its action.' Id. at 775-776. Only Justice Harlan would have prohibited the Board from adopting the Excelsior interpretation unless it did so by rulemaking, and then only because he deems such rulemaking necessary 'where, as here, [the Board] has previously recognized that the proposed new rule so departs from prior practices that it cannot fairly be applied retroactively.' Id. at 783 n.2 (Harlan, J., dissenting).
218. See supra notes 46-51 and accompanying text.
219. See, e.g., Verizon Tel. Cos. v. FCC, 269 F.3d 1098, 1109-1110 (D.C. Cir. 2001) (describing how D.C. Circuit case law developed into a test that essentially 'boil[s] down to a question of concerns grounded in notions of equity and fairness' (quoting Cassell v. FCC, 154 F.3d 478, 486 (D.C. Cir. 1998))).
220. Even this is not true if courts allow agencies to announce new policies and interpretations in adjudications but apply them prospectively only. See, e.g., Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 1095, 1100-03 (D.C. Cir. 2001) (upholding the NLRB's new interpretation of an existing rule but reversing the NLRB's decision to give retroactive effect to its new interpretation). Such a tactic eliminates the fair-notice concern, leaving the agency free to announce any substantively valid new policy or interpretation by adjudication rather than by guidance document.
221. Admittedly, this seems to provide an agency with the benefits of the action that was procedurally invalid, which might prompt courts to deny that invalid rules can provide such notice. Cf. Wyman-Gordon, 394 U.S. at 769-70 (Black, J., concurring) (criticizing the plurality for giving effect to an invalidly adopted policy and thereby undermining the procedural provisions of the APA); id. at 776 (Douglas, J., dissenting) (stating that the plurality allows 'the Board [to] 'have its cake and eat it too"); id. at 781 (Harlan, J., dissenting) (claiming that the plurality decision trivializes the rulemaking procedures of the APA).
222. If a court credits the invalid rule as giving notice of the change, then the reliance issue becomes one of the substantive wisdom of applying the new interpretation without sufficient lead time, which may be grounds for a court to reverse the application as arbitrary and capricious. See Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996) (reasoning that an agency interpretation 'that does not take account of legitimate reliance on prior interpretation ... may be 'arbitrary, capricious [or] an abuse of discretion" (second alteration in original) (citations omitted) (quoting 5 U.S.C. § 706(2)(A) (2006))). Hence, courts can protect reliance interests even if they follow the suggestion of this Article to substitute substantive for procedural review of guidance documents.
223. Magill, supra note 6;
224. Mendelson, supra note 7.
225. Magill, supra note 6, at 1414, 1446-47 (noting that an agency is not required to 'supply a reasoned decision for its discretionary choice' of form and arguing that judicial review 'could be effective in responding to' strategic choice of form by demanding a reasoned explanation). Magill does not limit her discussion to use of guidance documents; she addresses all choices of procedural mode, including the choice between legislative rules and adjudication. Id. at 1438-39. Her proposal to allow judicial review of choice of mode, although not explicit, is implicit in her arguments that judicial avoidance of such review is out of sync with judicial review of discretionary choices generally and her refutation of all possible normative justifications for treating agency choice of mode differently. Id. at 1416-1425.
226. Id. at 1413-1415.
227. Id. at 1415.
228. See supra notes 46-51 and accompanying text.
229. Merrick B. Garland, Deregulation and Judicial Review, 98 HARV. L. REV. 505, 553-555 & n.283 (1985) (explaining how hard-look review can "ferret out" an agency relying on illegitimate motives);
230. Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511, 1569-1570 (1992) (explaining how reasoned-decisionmaking review can identify decisions motivated by capture);
231. Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 469 (1987) ("The inquiry into arbitrariness is best understood as a means of 'flushing out' both serious errors of analysis and impermissible motivations for administrative behavior.").
232. Mendelson, supra note 7, at 438-444. This is only one of several 'more palatable' solutions suggested by Mendelson, but it is the one that she identifies as having the most promise. Id.
233. Id. at 439-441.
234. Id. at 439.
235. Id.
236. See Funk, supra note 95, at 1335-41 (citing multiple cases in which courts declined petitions to review guidance documents based on the courts' findings that the documents were not final or ripe for review).
237. See infra subpart IV(A).
238. See, e.g., Aulenback, Inc. v. Fed. Highway Admin., 103 F.3d 156, 167 (D.C. Cir. 1997) (concluding that even though an interpretive rule appeared to conflict with the authorizing statute, the rule was not ripe for review because the agency 'might decline to follow the [rule's] language'); ACLU v. FCC, 823 F.2d 1554, 1577-78 (D.C. Cir. 1987) (proclaiming that the abstractness of interpretive rules that have not yet been applied makes them difficult to judicially challenge); Ark. Power & Light Co. v. ICC, 725 F.2d 716, 725 (D.C. Cir. 1984) (finding a policy statement unripe for review because its aim was not to set binding legal norms).
239. See Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798, 808 (D.C. Cir. 2006) (following the established principle that courts 'lack authority to review claims under the APA 'where an agency merely expresses its view of what the law requires of a party, even if that view is adverse to the party" (quoting Indep. Equip. Dealers Ass'n v. EPA, 372 F.3d 420, 427 (D.C. Cir. 2004) (internal quotation marks omitted))); Indep. Equip. Dealers, 372 F.3d at 427 (reasoning that an interpretation in an EPA letter was not final agency action because it did not announce a change in regulations and had no binding effect).
240. See Molycorp, Inc. v. EPA, 197 F.3d 543, 547 (D.C. Cir. 1999) (holding that a policy statement was not ripe for review because any enforcement would be based on the underlying regulation and hence the petitioner was no worse off for the EPA having issued the statement).
241. See, e.g., Pub. Citizen, Inc. v. Nuclear Regulatory Comm'n, 940 F.2d 679, 683 (D.C. Cir. 1991) (deciding that a policy statement was not ripe for review because its lack of legal force meant that a regulated party could not change its conduct under the policy until it secured an exemption through future rulemaking or licensing proceedings); NRDC v. EPA, 859 F.2d 156, 166 (D.C. Cir. 1988) (declaring that the fact that a policy statement may create uncertainty about legal requirements or prompt an entity to challenge the policy when applied is not sufficient hardship to make the statement ripe for review).
242. See Strauss, supra note 14, at 1467-68 (describing rules issued by staff other than the agency head that might affect later agency decisions in particular cases).
243. See Mantel, supra note 66, at 353 (observing that one agency alone issues thousands of guidance documents annually); Strauss, supra note 14, at 1469 (describing the 'extraordinary volume' of publication rules and hypothesizing even greater volume of guidance documents that are not published in the Federal Register).
244. See Magill, supra note 6, at 1404-05 (asserting that courts' current practice of not requiring agencies to explain their choice of policy-making form is incongruent with the rest of judicial agency-review doctrine).
245. Mendelson, supra note 7, at 439 & n.223.
246. See 5 U.S.C. § 553 (b)-(c), (e) (2006) (requiring agencies to give notice of proposed rulemaking, opportunity for comment, and the right to petition for amendment).
247. Mendelson, supra note 7, at 440.
248. Courts have been reluctant to allow petitioners to force an agency to commence a noticeand- comment rulemaking by petitioning directly for legislative rulemaking under § 553(e). See Cellnet Commc'n, Inc. v. FCC, 965 F.2d 1106, 1111 (D.C. Cir. 1992) (acknowledging that judicial deference to an agency's refusal of petitions to commence rulemaking is 'so broad as to make the process akin to non-reviewability'); WWHT, Inc. v. FCC, 656 F.2d 807, 817 (D.C. Cir. 1981) (applying an extremely deferential standard of review to an agency decision to deny petitions for rulemaking because that decision "is inevitably based, in large measure, on factors not inherently susceptible to judicial resolution" (quoting NRDC v. SEC, 606 F.2d 1031, 1046 (D.C. Cir. 1979)));
249. Stephanie Tai, Three Asymmetries of Informed Environmental Decisionmaking, 78 TEMP. L. REV. 659, 695 (2005) ("[A]n agency's denial of the petition is subject to a very deferential standard of review.").
250. Mendelson, supra note 7, at 441 (recognizing that such costs might be "overwhelming").
251. Id. at 439.
252. See Heckler v. Chaney, 470 U.S. 821, 831 (1985) (attributing the general unsuitability of agency inaction for judicial review in part to each agency's unique capacity to determine whether taking a proposed action would align with its resources and priorities).
253. See 5 U.S.C. § 553(e) (2006) (granting interested parties the right to petition an agency to issue a rule). 200. Cf. Massachusetts v. EPA, 549 U.S. 497, 527 (2007) (recognizing that an agency's denial of a rule-issuance petition is subject to judicial review).
254. See, e.g., Chaney, 470 U.S. at 854 (Marshall, J., concurring) (reasoning that agency inaction is subject to review on the grounds that it was arbitrary, capricious, or an abuse of discretion, 'unless Congress has manifested a clear and convincing intent to preclude review').
255. See NRDC v. SEC, 606 F.2d 1031, 1052-53 (D.C. Cir. 1979) (noting that denials of petitions for adoption of a rule are entitled to special deference even after an agency has seen fit to commence a notice-and-comment proceeding); cf. Prof'l Pilots Fed'n v. FAA, 118 F.3d 758, 763-764 (D.C. Cir. 1997) (explaining that a 'more deferential standard of review is indicated, however, only when [an] agency has clearly shown that 'pragmatic considerations' would render the usual and somewhat more searching inquiry problematic because 'the agency has chosen not to regulate for reasons ill-suited to judicial resolution, e.g., because of internal management considerations as to budget and personnel or for reasons made after a weighing of competing policies" (quoting Bargmann v. Helms, 715 F.2d 638, 640 (D.C. Cir. 1983))).
256. See, e.g., Iowa ex rel. Miller v. Block, 771 F.2d 347, 351, 355 (8th Cir. 1985) (ordering the Secretary of Agriculture to commence a rulemaking where failure to do so would thwart 'the clear intent of Congress to establish a program').
257. Mendelson, supra note 7, at 440.
258. Magill, supra note 6, at 1422.
259. Id.
260. See supra notes 168-69 and accompanying text.
261. The interpretive rule and the judicial reaction to it are described in Alaska Professional Hunters Ass'n v. FAA, 177 F.3d 1030, 1033-36 (D.C. Cir. 1999).
262. Id. at 1033.
263. Id. at 1034-1036.
264. 5 U.S.C. § 553(e) (2006).
265. Subsection 553(a) provides that '[t]his section [entitled 'Rule making'] applies, according to the provisions thereof.' Id. § 553(a). It then exempts certain matters relating to military and foreign affairs and management of personnel and property from all of § 553. Id. Subsection 553(b) requires an agency to provide notice of proposed rulemaking, but exempts guidance documents from 'this subsection.' Id. § 553(b). Subsection 553(c) provides that '[a]fter notice required by this section, the agency shall give interested persons an opportunity to [file comments on the proposed rulemaking].' Id. § 553(c). Because notice is not required for guidance documents, there is a consensus that the comment requirement in subsection (c) does not apply to such documents. See ATTORNEY GENERAL'S MANUAL, supra note 19, at 28 ('Subsections (a) and (b) of § 4 must be read together because the procedural requirements of subsection (b) apply only where notice is required by subsection (a).'). Subsection 553(d) requires agencies to publish a rule 'not less than 30 days before its effective date' but again specifically exempts 'interpretative rules and statements of policy.' 5 U.S.C. § 553(d). Subsection 553(e) covers all rules and makes no exception for guidance documents. Id. § 553(e). Read in isolation, it might be possible for one to interpret the exception in § 553(b) as intending to exempt guidance documents from all of § 553. But, the second explicit exemption in subsection (d) and the fact that subsection (a) lays out the exemptions to the entire section deprive this interpretation of any plausibility.
266. This is explicitly the understanding of the Attorney General's Manual of 1947, which states that § 553(e) 'applies not only to substantive rules but also to interpretations and statements of general policy.' ATTORNEY GENERAL'S MANUAL, supra note 19, at 38.
267. See Atchison, Topeka & Santa Fe Ry. Co. v. Peña, 44 F.3d 437, 442, 445 (7th Cir. 1994) (en banc) (mentioning briefly § 553(e) in granting railroads' petitions for review of the actions of the Federal Railway Commission (FRC) and vacating the FRC's orders); Nat'l Wrestling Coaches Ass'n v. U.S. Dep't of Educ., 263 F. Supp. 2d 82, 126 (D.D.C. 2003) (recognizing the availability of judicial review for plaintiffs' § 553(e) claim), aff'd on other grounds, 366 F.3d 930, 948 (D.C. Cir. 2004). It is possible that other cases have not arisen because the current law does not limit the time within which an agency must respond. But time limits on agency action in other contexts have hardly been sufficient to actually force an agency to act within the allotted time frame. See infra note 221.
268. Mendelson, supra note 7, at 439-440.
269. Id. at 440 n.227 (citing Atchison, 44 F.3d at 442; Nat'l Wrestling Coaches, 263 F. Supp. 2d at 128; United Transp. Union v. Del. & Hudson Ry. Co., 977 F. Supp. 570, 574 n.2 (N.D.N.Y. 1997)).
270. The Seventh Circuit in Atchison stated that 'interested parties do not have the right to petition the agency for review of its interpretive rulings as they do with respect to agency rules.' Atchison, 44 F.3d at 442 (citing 5 U.S.C. § 553(e)). But the court need never have addressed that right because it struck down the interpretive rule on the merits. Id. at 445. The one-sentence mention of the right to petition for modification was made as part of a discussion of how much deference interpretive rules were due. Id. at 441-43. The sentence was included as part of the court's unremarkable explanation that, in general, the APA treats legislative rules differently from interpretive rules. Id. at 442.
271. See United Transp. Union, 977 F. Supp. at 574 & n.2 (stating the same language as Atchison while also considering the degree of deference due interpretations in guidance documents). In this case, however, there was not even a petition seeking issuance or amendment of a guidance document so, necessarily, the statement was dicta.
272. See Nat'l Wrestling Coaches Ass'n v. U.S. Dep't of Educ., 366 F.3d 930, 948-49 (D.C. Cir. 2004) (dismissing the claim for unlawful denial of a petition for rehearing or review as not ripe), aff'g on other grounds, 263 F. Supp. 2d 82, 128 (D.D.C. 2003) (dismissing the claim in part because the guidance document did not intend to revisit the substance of a previous policy).
273. See Guardian Fed. Sav. & Loan Ass'n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d 658, 668 (D.C. Cir. 1978) (discussing in dicta the availability of § 553(e)). After carefully analyzing the language of § 553 of the APA, Judge Leventhal opined that if the agency began applying the guidance document like a legislative rule, the interests affected would at least have the opportunity to invoke subsection 553(e) of the APA to petition for a modification, an opportunity in effect to assure some agency consideration of comments.... When there has been no procedure for comment in the first instance, a petition to modify may serve an appropriate objective. On the other hand, this is definitely not to be construed as an invitation or authority to an institution to file a petition every time it feels aggrieved by some policy or instruction. Id.
274. Mendelson's proposal, which includes a six-month deadline for the agency to respond to a petition to modify a guidance document, may counter the potential for agency delay that could deny petitioners meaningful relief from a guidance document. Unfortunately, experience has shown that even a statutory deadline will often be ineffective to prevent agency delay because petitioners have to wait for the deadline to pass to sue to get the agency to respond, and courts are so solicitous of administrative discretion about how to deploy agency resources that they usually grant agencies substantial time after the deadline to comply. See, e.g., Rosemere Neighborhood Ass'n v. EPA, 581 F.3d 1169, 1171-72 (9th Cir. 2009) (describing the six-year process for petitioner to get a court to order the EPA to rule on a complaint that by regulation the EPA was required to accept or reject within twenty days); Forest Guardians v. Babbitt, 174 F.3d 1178, 1193 (10th Cir. 1999) (ordering the Secretary to designate critical habitat for an endangered species 'as soon as possible,' despite the fact that the deadline had passed years before, reasoning that 'any order now to impose a new deadline for compliance must consider what work is necessary to publish the final rule and how quickly that can be accomplished').
275. Stuart Minor Benjamin & Arti K. Rai, Fixing Innovation Policy: A Structural Perspective, 77 GEO. WASH. L. REV. 1, 69-75 (2008) (concluding that hard-look-type review can provide benefits for government innovation without imposing the costs of notice-and-comment proceedings).
276. Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. REV. 1657, 1660-1661 (2004) (contending that reasoned-decisionmaking review would discourage agency action that "does not reflect the manner in which good government should operate");
277. Seidenfeld, supra note 126, at 547 (remarking that the psychology of accountability suggests that reasoned-decisionmaking review would improve the quality of agency rules).
278. See Bressman, supra note 126, at 1761-62 (noting that 'the hard look doctrine promoted participation by encouraging agencies to respond to criticisms and show why they had rejected alternative solutions,' but also remarking that the doctrine was not entirely successful in equalizing participation by various stakeholders); Rossi, supra note 125, at 818 ('[T]he hard look doctrine ensures participation by precluding agencies from giving one interest the rubber-stamp in the rulemaking process, only to ignore the objections of other interests.').
279. See Seidenfeld, supra note 125, at 493 & n.59 (noting that agencies have added new professionals to their organizations to better understand judges' concerns and to convince courts of the merits of their decisions).
280. See Abbott Labs. v. Gardner, 387 U.S. 136, 152-53 (1967) (noting that delaying judicial review of a rule mandating conduct until the agency enforces the rule poses a dilemma for regulated entities).
281. Stuart Minor Benjamin, Evaluating E-Rulemaking: Public Participation and Political Institutions, 55 DUKE L.J. 893, 909-913 (2006) (identifying potential ways in which increased participation can improve rulemaking quality).
282. st Cir. 2000) (deferring to the agency's explanation of a rule because it was 'commonsense' and opining that if the petitioner had evidence that might undermine the explanation, it could introduce that evidence as part of a petition to amend the regulation); see also supra notes 211-21 and accompanying text.
283. See supra note 222 and accompanying text.
284. See 5 U.S.C. § 553(b)(3)(A) (2006) (exempting interpretive rules and policy statements from APA notice-and-comment rulemaking procedural requirements).
285. Jerry L.Mashaw & David L. Harfst, THE STRUGGLE FOR AUTO SAFETY 225 (1990) (listing agencies that have found their activities halted by judicial review);
286. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385, 1400-1403, 1419 (1992) (explaining the time-consuming nature of drafting rules to withstand judicial scrutiny);
287. Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 65-66 (1995) (listing doctrinal shifts courts have made to reduce rulemaking ossification).
288. Mark Seidenfeld, Why Agencies Act: A Reassessment of the Ossification Critique of Judicial Review, 70 OHIO ST. L.J. 251 (2009) (examining the consequences of hard-look review);
289. 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, 440 (2000) (reporting that agencies in most instances were able to reinstate the substance of rules that courts had reversed as arbitrary and capricious).
290. See McGarity, supra note 231, at 1401 (noting the 'Herculean effort' rulemakers must undertake so that rules will withstand judicial scrutiny).
291. Strauss, supra note 14, at 1467.
292. See id. at 1472 (arguing that the procedural- and hard-look-review requirements 'could significantly impair a kind of activity [(the issuance of guidance documents)] Congress has chosen, perhaps for good reason, to permit on a significantly less formal basis');
293. Emerson H. Tiller & Pablo T. Spiller, Strategic Instruments: Legal Structure and Political Games in Administrative Law, 15 J.L. ECON. & ORG. 349, 351-352 (1999) (modeling how the threat of judicial reversal may discourage an agency from adopting its preferred policy).
294. For a theoretical analysis of the benefits and detriments of preenforcement of rules
295. Mark Seidenfeld, Playing Games with the Timing of Judicial Review: An Evaluation of Proposals to Restrict Pre-enforcement Review of Agency Rules, 58 OHIO ST. L.J. 85 (1997).
296. 5 U.S.C. § 704 (2006).
297. Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)) (internal quotation marks omitted).
298. Id. at 178 (quoting Port of Bos. Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)) (internal quotation marks omitted).
299. See, e.g., NRDC v. EPA, 643 F.3d 311, 320 (D.C. Cir. 2011) (concluding that an EPA guidance document qualified as final agency action when the guidance document made a binding change to existing law); Venetian Casino Resort, L.L.C. v. EEOC, 530 F.3d 925, 931 (D.C. Cir. 2008) (holding that the EEOC's decision to adopt a policy within one of its guidance documents constituted final agency action); Gen. Elec. Co. v. EPA, 290 F.3d 377, 380 (D.C. Cir. 2002) ('[I]t is clear that the Guidance Document is final agency action because it marks the consummation of the EPA's decisionmaking process and it determines the rights and obligations of both applicants and the Agency.').
300. See, e.g., Taylor-Callahan-Coleman Cntys. Dist. Adult Prob. Dep't v. Dole, 948 F.2d 953, 957 (5th Cir. 1991) (holding that advisory interpretations of the Wage and Hour Administrator are not final agency actions because 'they are expressly issued subject to change by the Administrator').
301. See, e.g., Air Brake Sys., Inc. v. Mineta, 357 F.3d 632, 639 (6th Cir. 2004) (describing the NHTSA Chief Counsel's letter explaining why a manufacturer's product did not meet the agency's safety requirements as tentative and, hence, not final action in part because it was based on initial facts the agency learned from the manufacturer).
302. See, e.g., id. at 639 (describing the 'conditional' nature of the NHTSA Chief Counsel's letter as sufficient to suggest that the letter is nonfinal and nonreviewable); Taylor-Callahan- Coleman, 948 F.2d at 957 (observing that agency interpretations were subject to change and, thus, not subject to judicial review).
303. Richard J. Pierce, Jr. et al., ADMINISTRATIVE LAW AND PROCESS § 5.7.1, at 190 (4th ed. 2004) (explaining that the concept of finality "is designed to avoid premature judicial involvement in the agency decision making process" that would take from the agency the initial decision-making power granted by the legislature).
304. Funk, supra note 95, at 1336; see also Nat'l Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689, 701 (D.C. Cir. 1971) (holding a lengthy letter from the Administrator of the Wage and Hour Division of the Department of Labor that explained an interpretation to an association of retail stores to be final agency action even though his decision could be changed in the future).
305. See, e.g., Air Brake, 357 F.3d at 640 (concluding that the NHTSA Chief Counsel's determinations regarding safety standard compliance did not constitute final agency action because the Chief Counsel was not delegated the authority to make such decisions); see also Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (stating in dicta that 'agency action is not final if it is only 'the ruling of a subordinate official" (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 152 (1967))). But see W. Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659, 663 (7th Cir. 1998) (holding that a letter from an 'obviously ... subordinate official at the DOL' of a 'relatively low position within the Department' did not preclude the court from finding the letter final and reviewable agency action because '[l]egal consequences flow[ed] from it').
306. See Nat'l Automatic Laundry, 443 F.2d at 700 (discussing the difference between a letter from an agency head and one by a subordinate official and noting that the consummation criterion is not required 'when the interpretive ruling is signed by the head of the agency').
307. See supra note 235 and accompanying text.
308. This would not include agency actions that initiate further proceedings, such as the filing of an administrative complaint, given that the matter will be presented to the agency head as part of the initiated proceeding. See FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 241 (1980) (holding that the FTC's averment of 'reason to believe' that Standard Oil of California was violating the Federal Trade Commission Act was merely a threshold determination that a complaint should initiate further proceedings, and not a definitive statement of position); cf. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 157-58 (1975) (holding that memoranda from NLRB General Counsel regarding whether the agency should file unfair-labor-practice complaints are final agency action subject to disclosure under FOIA if the agency dismisses the complaint).
309. Cf. Funk, supra note 95, at 1340 (asserting that courts are more apt to find a nonlegislative rule that relieves an entity from a potential regulatory burden to be ripe for review when challenged by the regulatory beneficiaries).
310. See 5 U.S.C. § 704 (2006) (stating that an agency action is not final if the agency 'requires by rule and provides that the action ... is inoperative' upon an application 'for an appeal to superior agency authority'); Darby v. Cisneros, 509 U.S. 137, 152 (1993) (asserting that the purpose of § 704 was to allow an agency to mandate an appeal of an examiner's initial decision, which the APA otherwise made final).
311. See supra note 20 and accompanying text.
312. th Cir. 1981) (holding that a letter from DOT's general counsel threatening an airport with withholding of federal funds for violating the statute was not final because it lacked the 'status of law'). In some cases, however, courts have found pragmatic impacts sufficient to render agency action final. See, e.g., Manufactured Hous. Inst. v. EPA, 467 F.3d 391, 397-98 (4th Cir. 2006) (holding that an EPA policy regarding the submetering-oversight programs of states qualifies as a final action based on EPA's prior threats and involvement in state decision making, and the policy's chilling effect on certain corporate owners).
313. 520 U.S. 154 (1997).
314. Id. at 177-78 (quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948); Port of Bos. Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)); see also Gwendolyn McKee, Judicial Review of Agency Guidance Documents: Rethinking the Finality Doctrine, 60 ADMIN L. REV. 371, 403-04 (2008) (showing that the legalrights- and-obligations prong of finality evolved from a statute-specific limitation on review of orders that had to be enforced by bringing an action in court and arguing that the prong does not serve any of the purposes of the finality limitation on review).
315. In National Park Hospitality Ass'n v. Department of the Interior, 538 U.S. 803 (2003), the Court ruled that a policy statement was not ripe for review because it had no legal impact. Id. At 809. But its rationale was that the document was not final agency action and therefore its impact did not create hardship sufficient to make the action ripe. Id. at 809-10. It is not clear what the importation of finality concerns into ripeness added to the analysis.
316. Bennett, 520 U.S. at 177-178.
317. Id. at 169-170.
318. See id. at 178 ('[T]he Biological Opinion and accompanying Incidental Take Statement alter the legal regime to which the action agency is subject, authorizing it to take the endangered species if (but only if) it complies with the prescribed conditions.').
319. This lack of relation makes the prong especially problematic in cases where agency action clearly both represents the consummation of agency decision making and causes direct harm. See, e.g., Trudeau v. FTC, 456 F.3d 178, 190-91 (D.C. Cir. 2006) (going to great pains to avoid deciding whether a press release that allegedly defamed the plaintiff but had no legal impact was final agency action).
320. See McKee, supra note 255, at 406 (describing how the second prong fractures proper and efficient judicial review by providing two instances for a court to address the hardship prong of the ripeness doctrine).
321. See supra notes 127, 133 and accompanying text (describing the legal effect of guidance documents under the ex-post-monitoring school). At least one case has relied on the notice that agency action provided to conclude that it has legal consequences. W. Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659, 663 (7th Cir. 1998) (holding that a letter had 'legal consequences' because it established the legal obligation that would subject the petitioner to penalties should it not prevail in an enforcement proceeding).
322. See Abbott Labs. v. Gardner, 387 U.S. 136, 149-50 (1967) (noting that cases interpret the "finality' element in a pragmatic way' and analyzing cases that demonstrate the 'flexible view of finality'); Madeline Fleisher, Judicial Decision Making Under the Microscope: Moving Beyond Politics Versus Precedent, 60 RUTGERS L. REV. 919, 935, 943 n.89 (2008) (describing ripeness as a 'fact-centered prudential inquiry' unlikely to be determined by citation to factually analogous cases).
323. Compare Abbott Labs., 387 U.S. at 152-53 (noting that regulation puts the petitioner on the horns of a 'dilemma' of having to choose between costly compliance or risk of penalty for noncompliance), with Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 164-65 (1967) (distinguishing Abbott Laboratories because the regulation at issue in Toilet Goods did not impose any legal requirement on the primary conduct of the petitioner).
324. Anthony, supra note 2, at 1328. My definition of pragmatically binding differs from Anthony's in that I would look simply to whether the text of the rule specifies a determinate policy or interpretation of the agency. Doing so avoids much of the difficulty in distinguishing between guidance documents that are practically binding and those that are not under Anthony's approach.
325. Abbott Labs., 387 U.S. at 149. Some courts have read Abbott Laboratories to require that either prong be met, while others have required both to be met, at least to some extent. See Neb. Pub. Power Dist. v. MidAmerican Energy Co., 234 F.3d 1032, 1038-39 (8th Cir. 2000) (describing this debate among appellate courts).
326. See, e.g., Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 810-811 (2003) (reasoning that the National Park Service's (NPS) interpretation of the Contracts Dispute Act (CDA) did not impose a hardship on existing park concessioners because the NPS was not authorized to administer the CDA, even though the NPS construction of the CDA would affect concessioner negotiations with the NPS); Munsell v. Dep't of Agric., 509 F.3d 572, 586 (D.C. Cir. 2007) (holding that an inspection policy that targeted meat processors that did not sample meat for E. coli contamination was not ripe because the processors were not required to engage in any conduct); Truckers United for Safety v. Fed. Highway Admin., 139 F.3d 934, 938 & n.3 (D.C. Cir. 1998) (reasoning in part that the legal impact of a Federal Highway Administration statement indicating that trucking companies would be liable for violations of rules by their drivers did not create a hardship because counsel stated at argument that the companies could not change their conduct to avoid such liability).
327. See Franklin, supra note 4, at 303, 305 (explaining that agencies use nonlegislative rules to announce how they intend to carry out their statutory mandates and that these nonlegislative rules affect regulated industries and the public generally regardless of how they are characterized).
328. See, e.g., Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 936-39 (D.C. Cir. 2004) (denying standing to petitioners challenging a DOE statement setting out the agency's enforcement policy because they could not show that those regulated by the DOE would change the conduct that led to petitioners' injuries if the DOE rescinded that statement); cf. Truckers United for Safety, 139 F.3d at 938 & n.3 (denying the hardship prong of the ripeness inquiry in part because counsel stated at oral argument that the regulated beneficiaries could not change their conduct in response to the agency's guidance).
329. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992) (explaining that for suits by regulatory beneficiaries, causation of injury hinges on the response of third parties to regulation and noting that when the plaintiff is not the object of the regulation, standing is 'substantially more difficult to establish' (internal quotation marks omitted)); Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies-and Their Connections to Substantive Rights, 92 VA. L. REV. 633, 680 (2006) (acknowledging that courts are more reluctant to find challenges to regulations by beneficiaries ripe than challenges by regulated entities); Marla E. Mansfield, Standing and Ripeness Revisited: The Supreme Court's 'Hypothetical' Barriers, 68 N.D. L. REV. 1, 46-47 (1992) (describing the difficulty for beneficiaries of showing ripeness under the Lujan standard- specifically, the difficulty of showing that the challenged rule requires behavior modification when it is the regulated party, not the beneficiary, who must modify its behavior).
330. See, e.g., Nat'l Park Hospitality Ass'n, 538 U.S. at 812 (holding that agency action was not fit for judicial review because of the lack of a 'concrete dispute'); Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 162 (1967) (declining to review an administrative regulation on the merits because it was not fit for judicial resolution); Ass'n of Am. Med. Colls. v. United States, 217 F.3d 770, 780-82 (9th Cir. 2000) (concluding that agency action was not fit for judicial review); see also Teva Pharm. USA, Inc. v. Sebelius, 595 F.3d 1303, 1308 (D.C. Cir. 2010) ('The 'fitness' prong of the [ripeness] analysis generally addresses 'whether the issue is purely legal, whether consideration of the issue would benefit from a more concrete setting, and whether the agency's action is sufficiently final." (quoting Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng'rs, 440 F.3d 459, 463 (D.C. Cir. 2006))).
331. See, e.g., Interstate Natural Gas Ass'n of Am. v. FERC, 285 F.3d 18, 58-61 (D.C. Cir. 2002) (holding that a challenge to FERC's policy allowing gas pipelines to file seasonally variable rates was not ripe because the FERC left it to pipelines to propose specific variable rates as part of their tariff filings and thus there was no factual record that showed how this policy might be applied); Fla. Power & Light Co. v. EPA, 145 F.3d 1414, 1421 (D.C. Cir. 1998) (finding the EPA's interpretation about its authority under the Resource Conservation and Recovery Act to require cleanup of releases from certain waste facilities unripe because 'it remains uncertain whether, or on what grounds, EPA would even apply this rule to clean-closed facilities'); Dietary Supplemental Coal. Inc. v. Sullivan, 978 F.2d 560, 562-65 (9th Cir. 1992) (holding that issuance of 'regulatory letters ... informing recipients that CoQ10 was an unapproved food additive whose continued marketing subjected its sellers to enforcement actions' was not ripe for review-even though the FDA had seized products containing CoQ10-reasoning that since the FDA's position on CoQ10 was not a final agency action, it was not bound by that position).
332. See, e.g., Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1128 (9th Cir. 2009) ('If and when the parties are able to provide examples of the manner in which the HHS has used the Policy Guidance ... we will be in a better position to determine whether [it] functions as a substantive rule or as a general statement of policy.'); Munsell v. Dep't of Agric., 509 F.3d 572, 586 (D.C. Cir. 2007) (stating that the court had no way to evaluate the "myriad circumstances that' will arise in connection with USDA enforcement actions taken pursuant to [the Directive]' (quoting City of Hous. v. HUD, 24 F.3d 1421, 1431 (D.C. Cir. 1994))).
333. John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 612, 655-660 (1996)
334. (arguing that judicial deference to agency interpretations of their own regulations encourages agencies to adopt unclear regulations and observing that under Seminole Rock, 'an agency can safely select words having 'so little color of their own that they can be made to take almost any hue" (quoting Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 884 (1930))). See generally Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L.J. 65 (1983) (contending that transparency is one desired trait of agency rules that often is traded off against congruency of rules to the desired outcomes and minimization of rulemaking costs).
335. See, e.g., Fox Television Stations, Inc. v. FCC, 280 F.3d 1027, 1037-40 (D.C. Cir. 2002) (entertaining an arbitrary and capricious challenge to an FCC decision not to repeal broadcasting ownership rules even though there was no indication what rules the FCC would adopt to replace the ownership rules were it to repeal them);
336. Jerry L. Mashaw, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 179 (1997)
337. (asserting that preenforcement review of legislative rules is now the norm); Diver, supra note 45, at 412 (noting that Congress has reinforced the norm of preenforcement review of rules by prohibiting collateral attacks on rules in enforcement proceedings).
338. See Anthony, supra note 2, at 1362 (bemoaning the fact that because vague rule statements are less likely to be treated as 'legislative,' agencies are 'rewarded' for making rule statements ambiguous); supra note 82 and accompanying text (citing four cases from three circuits involving agency-issued policy statements in which their binding qualities made them rule-like).
339. Cf. Anthony, supra note 2, at 1361 (making the related point that allowing agencies to avoid notice-and-comment procedures if they retain discretion in applying a guidance document 'leave[s] the private party in the worst of possible worlds').
340. See supra notes 52-54 and accompanying text.
341. See Coglianese et al., supra note 30, at 946 (asserting that public participation provides information that helps create a more complete record for judicial review)
342. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2271 n.90 (2001) ("[A]n extensive record of public comments and responses helps a court to review the adequacy of an agency's decisionmaking process.").
343. William F. Pedersen, Jr., Formal Records and Informal Rulemaking, 85 YALE L.J. 38 (1975) (discussing the relationship of the rulemaking record to the benefits provided by judicial review).
344. See, e.g., Prof'l Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216, 1223 (D.C. Cir. 1983) ('Review of an agency's denial of a rulemaking petition is under the arbitrary and capricious standard ....' (internal quotations omitted)).
345. See Prof'l Pilots Fed'n v. FAA, 118 F.3d 758, 763-64 (D.C. Cir. 1997) (resolving to apply the usual searching standard of review unless the agency decision reflects pragmatic considerations such as resource constraints that render such review problematic); NRDC v. SEC, 606 F.2d 1031, 1045-46 (D.C. Cir. 1979) (noting that considerations of review interfering in an agency's execution of its programs are more compelling when the agency has denied an initial petition to commence a rulemaking than when it has held extensive rulemaking proceedings).
346. See Tai, supra note 195, at 695 ('Although under APA § 553(e), a party may petition an agency to initiate a rulemaking, such petitions carry very little force because an agency's denial of the petition is subject to a very deferential standard of review.' (footnote omitted)); Raymond Murphy, Note, The Scope of Review of Agencies' Refusals to Enforce or Promulgate Rules, 53 GEO. WASH. L. REV. 86, 87 (1984) (reporting on numerous cases reviewing petitions to initiate rulemaking in which the courts applied a standard 'considerably less demanding than the review afforded adoptions of rules').
347. 549 U.S. 497 (2007).
348. For example, Jody Freeman and Adrian Vermeule argue that this perversity led the Court to distrust the agency science as improperly co-opted by politics, and that the case is one of several expressing distrust of administrative politics.
349. Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 SUP. CT. REV. 51, 52.
350. Bressman, supra note 126, at 1761;
351. Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1756-1760 (1975) (describing how the "adequate consideration" doctrine was meant to implement an "interest representation" model of administrative law).
352. Kagan, supra note 279, at 2380;
353. Thomas J. Miles & Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U. CHI. L. REV. 761, 761 (2008)
354. ('The [hard-look] doctrine found its origins in judicial decisions requiring administrative agencies to demonstrate that they had taken a 'hard look' at the underlying questions of policy and fact. Hence agencies were required to offer detailed, even encyclopedic, explanations for their conclusions, to respond to counterarguments, to justify departures from past practices, and to give careful consideration to alternatives to the proposed course of action.' (footnote omitted)).
355. I would apply my modified version of reasoned decisionmaking to review of guidance documents whether or not the agency actually used notice-and-comment procedures to develop them, to avoid deterring the agency from using such procedures.
356. Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551-55 (1978).
357. Id. at 552.
358. Id. at 531.
359. Id. at 553.
360. Id. at 551.
361. Id. at 552.
362. The statute requires a 'detailed statement' of any 'alternatives to the proposed action.' 42 U.S.C. § 4332(C) (2006). There is no indication that this is limited by the outcome of the evaluation process.
363. The D.C. Circuit formulated hard-look review at the same time that it developed the obligations that NEPA imposed on agencies, and many of these obligations are mirrored in obligations mandated by hard-look review.
364. Robert L. Rabin, Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189, 1300-1308 (1986)
365. (detailing how NEPA review sowed the seeds of hard-look review in the D.C. Circuit). Thus, it should not be surprising that NEPA, which does not mandate significant involvement of the public in development of a record if the agency finds that its action will have no significant environmental impact, provides the template for applying reasoned decisionmaking when an agency acts with no need to develop a public record. Bradley C. Karkkainen, Toward a Smarter NEPA: Monitoring and Managing Government's Environmental Performance, 102 COLUM. L. REV. 903, 919 (2002).
366. Strategic use of petitions for rulemaking proceedings is a concern that dates back to the adoption of the APA in 1946.
367. Foster H. Sherwood, The Federal Administrative Procedure Act, 41 AM. POL. SCI. REV. 271, 279 (1947) (viewing the right to petition for a rulemaking as having "doubtful value" because agencies might be "swamped by frivolous requests having delay as their sole objective").
368. The use of such data or analyses raises the same concerns that courts have addressed by requiring agencies to make data and analyses on which they rely to justify legislative rules available as part of the notice-and-comment process. See, e.g., United States v. N.S. Food Prods. Corp., 568 F.2d 240, 251 (2d Cir. 1977) ('If the failure to notify interested persons of the scientific research upon which the agency was relying actually prevented the presentation of relevant comment, the agency may be held not to have considered all 'the relevant factors."); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973) (stating that the purposes of rulemaking are undermined when an agency 'promulgate[s] rules on the basis of inadequate data, or on data that, [in] critical degree, is known only to the agency').
369. Massachusetts v. EPA, 549 U.S. 497, 513 (2007).
370. Id. at 521 (concluding that '[t]he harms associated with climate change are serious and well recognized').
371. Id. at 533. Although the EPA had engaged in notice-and-comment proceedings, the Court repeatedly emphasized the publicly available scientific reports and the consensus that global warming is a problem, and it did not rely on the EPA's failure to address any issue in the record. Id. at 507-09, 521.
372. See Pierce, supra note 231, at 68 ('[T]he duty [to engage in reasoned decisionmaking] may have a systemically beneficial effect on agency decisionmaking to the extent that it induces agencies to consider issues and values agencies otherwise would be tempted to ignore.').
373. Seidenfeld, supra note 126, at 522-523.
374. Id. at 517.
375. Id. at 516-517.
376. See KERWIN & FURLONG, supra note 61, at 81, 196, 200 (describing the importance of rule development before a rule is proposed);.
377. Scott R. Furlong, Interest Group Influence on Rule Making, 29 ADMIN. & SOC'Y 325, 334-335 (1997) (reporting that interest groups believe that informal contact prior to a rule being proposed is one of the most effective ways to influence rulemaking).
378. Mendelson, supra note 7, at 425 (noting that some agencies 'regularly seek outside views on significant guidance and policy documents' and may do so for a variety of reasons, including identifying problems with the policy or detecting potential political opposition early).
379. Id. at 425-426.
380. Id. at 427-429;
381. Wendy E. Wagner, Administrative Law, Filter Failure, and Information Capture, 59 DUKE L.J. 1321, 1380-1383 (2010);
382. Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 TEXAS L. REV. 15, 23-24 (2010) (explaining that because so much expertise lies with industry, it is only natural for agencies to turn to them for the information needed to develop sound policy);
383. Cary Coglianese et al., Seeking Truth for Power: Informational Strategy and Regulatory Policymaking, 89 MINN. L. REV. 277, 333 (2004) (describing how agencies can "improve the reliability of information by fostering closer and longer relationships with industry').
384. Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. CHI. L. REV. 821, 834 (2003) (describing how powerful legislative constituents get Congress to put pressure on agencies to regulate to their benefit);
385. Sidney A. Shapiro, Political Oversight and the Deterioration of Regulatory Policy, 46 ADMIN. L. REV. 1, 18 (1994)
386. (describing how administrative proceedings can be stacked to favor a prevailing legislative coalition by enacting policies and procedures that give interest groups influence through political pressure, participation, and judicial review).
387. Wagner, supra note 308, at 1380 ('Interest groups with extra knowledge or facts relevant to a rule are likely to enjoy special participatory advantages in the process and may even find themselves working side-by-side with the agency as it develops its proposed rule.'); see also Croley, supra note 309, at 834 (asserting that agencies can be biased toward certain stakeholders 'because agencies rely so heavily on information about the consequences of regulatory alternatives from the very interests most affected by regulation');
388. Clayton P. Gillette & James E. Krier, Risks, Courts, and Agencies, 138 U. PA. L. REV. 1027, 1066 (1990) (describing how interest groups can influence agency action by providing information, among other things).
389. See Wagner, supra note 308, at 1381 (arguing that agency staffers consider information and issues raised by industry in order to increase the prospect that a rule will survive judicial review if challenged).
390. See id. at 1380 (highlighting the need for an agency to 'engage in due diligence and reach out to the most knowledgeable stakeholders' in order to avoid having these groups 'torpedo its final rule');
391. Jim Rossi, Bargaining in the Shadow of Administrative Procedure: The Public Interest in Rulemaking Settlement, 51 DUKE L.J. 1015, 1026 (2001) (arguing that the threat to challenge agency rules allows stakeholders to extract concessions as part of settlements of such suits).
392. This might partially explain the suggestion by Matthew Stephenson that courts are less deferential to decisions that are made without the benefit of public input. See Stephenson, supra note 158, at 530 (arguing that courts are more likely to defer to an agency decision made 'via an elaborate formal proceeding').
393. Galle & Seidenfeld, supra note 31, at 1939-1940.
394. See supra notes 148-149 and accompanying text.
395. Courts should not circumvent such challenges by applying general statutory time limits on rule challenges to nonlegislative rules. Because agencies adopt nonlegislative rules without formal opportunity for stakeholders to raise issues for agency consideration, under my proposal, postenforcement review would be the only opportunity to raise an issue that, although relevant, was not deemed so based on the state of knowledge available to the agency when it acted. Thus, allowing suits upon application of the guidance that occurs after statutory time limits for review is consistent with the principle that such time limits should not apply when the petitioner would have been unable to bring suit within the specified period. See Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 911 (D.C. Cir. 1985) (noting that the court has 'entertained untimely claims only in a limited number of exceptional circumstances where the petitioner lacked a meaningful opportunity to challenge the agency action during the review period'); Consolidation Coal Co. v. Donovan, 656 F.2d 910, 914-15 (3d Cir. 1981) ('Where the right to petition for review within 30 days after promulgation of a regulation does not provide an adequate remedy, alternative means may be utilized to bring a claim ....' (quoting Inv. Co. Inst. v. Bd. of Governors, 551 F.2d 1270, 1281 (D.C. Cir. 1977))).
396. See Jordan, supra note 232, at 424 (expounding on an empirical study reporting that for several major rules reversed as arbitrary and capricious, the agency subsequently adopted the same rule by providing additional adequate explanation).
397. See supra notes 228-235 and accompanying text.
398. See KERWIN & FURLONG, supra note 61, at 115-116 (listing potential drawbacks to widespread public comment, providing examples of overwhelmingly massive public outpouring, and concluding that '[t]he volume of public comment ... can slow the process and interfere with decision making');
399. Cary Coglianese, E-Rulemaking: Information Technology and the Regulatory Process, 56 ADMIN. L. REV. 353, 361 (2004) ("[T]he tasks of gathering, processing, analyzing, and communicating information make up most of the administrative costs associated with rulemaking.");
400. Jim Rossi, Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decisionmaking, 92 NW. U. L. REV. 173, 225 (1997)
401. ('[T]he large amounts of information provided by participants may adversely affect the decisionmaking process by impairing the quality of the analysis and polarizing participants' preferences.').
402. See supra text accompanying notes 294-297.