Presidential control, expertise, and the deference dilemma

Duke Law Journal

Volumn 61, Issue 8, 2012, Pages 1763-1810

  Meazell, Emily Hammond ^a  

^a UNIVERSITY OF OKLAHOMA   (United States)

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EID: 84864818496     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (203)

1. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984) ("While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices . . . .").
2. In re Aiken Cnty., 645 F.3d 428, 440 (D.C. Cir. 2011) (Kavanaugh, J., concurring) ("Presidential control of those agencies thus helps maintain democratic accountability and thereby ensure the people's liberty.").
3. Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983) (stating that when agencies are acting at the frontiers of science, courts must be at their most deferential).
4. see also Chevron, 467 U.S. at 863 (noting that agencies make interpretations "in the context of implementing policy decisions in a technical and complex arena").
5. For a sampling on presidential control, see generally Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001).
6. Nina A. Mendelson, Disclosing "Political" Oversight of Agency Decision Making, 108 MICH. L. REV. 1127 (2010).
7. Kevin M. Stack, The President's Statutory Powers To Administer the Laws, 106 COLUM. L. REV. 263 (2006).
8. Peter L. Strauss, Overseer, or "The Decider"? The President in Administrative Law, 75 GEO. WASH. L. REV. 696 (2007).
9. Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 YALE L.J. 2 (2009). For literature related to the expertise model.
10. For literature related to the expertise model, see generally STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION (1993).
11. Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 480 n.88 (2003).
12. Emily Hammond Meazell, Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science, 109 MICH. L. REV. 733 (2011).
13. For an excellent critical typology of shared regulatory spaces, see generally Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 HARV. L. REV. 1131 (2012).
14. For a normative account in the environmental context, see generally Eric Biber, Too Many Things To Do: How To Deal with the Dysfunction of Multiple-Goal Agencies, 33 HARV. ENVTL. L. REV. 1 (2009).
15. This topic has generated a vast literature. See, e.g., RESCUING SCIENCE FROM POLITICS: REGULATION AND THE DISTORTION OF SCIENTIFIC TRUTH (Wendy Wagner & Rena Steinzor eds., 2006) (exploring the influence of special interests on scientific research).
16. Holly Doremus, Science Plays Defense: Natural Resources Management in the Bush Administration, 32 ECOLOGY L.Q. 249 (2005) (discussing the George W. Bush administration's use of defensive science and suggesting that conservationists should bring transparency and a commitment to updating to the regulatory arena).
17. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 COLUM. L. REV. 1613, 1650-71 (1995) (documenting incentives for agencies to conflate science and policy).
18. See Chevron, 467 U.S. at 865 (invoking both of these principles).
19. Nuclear Waste Policy Act of 1982, 42 U.S.C. §§ 10101-10270 (2006).
20. In re Aiken Cnty., 645 F.3d 428, 439 (D.C. Cir. 2011) (Kavanaugh, J., concurring) ("At the President's direction, the [DOE] decided to withdraw the Yucca Mountain license application and terminate the Yucca Mountain nuclear storage project.").
21. See U.S. Dep't of Energy, No. LBP-10-11 (Atomic Safety & Licensing Bd., Nuclear Regulatory Comm'n June 29, 2010), available at http://pbadupws.nrc.gov/docs/ML1018/ML101800299.pdf (denying the DOE's motion to withdraw), aff'd by an equally divided commission, No. CLI-11-07 (Nuclear Regulatory Comm'n Sept. 9, 2011).
22. This is perhaps the strongest case for a presidential-control theory of deference, particularly because President Obama's direction to the DOE was transparent. Cf. Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in part and dissenting in part) (noting that a change of presidential administration could provide a reasonable basis for an agency's changed assessment of costs and benefits).
23. Lisa Schultz Bressman & Robert B. Thompson, The Future of Agency Independence, 63 VAND. L. REV. 599, 609-10 (2010) (noting that the distinguishing feature of independent agencies is that "the President lacks authority to remove their heads from office except for cause").
24. See infra Part I.B.
25. See In re Aiken Cnty., 645 F.3d 428, 430 (D.C. Cir. 2011) ("Three state and local governmental units, along with individual citizens, petition[ed] th[e] court . . . .").
26. In re Aiken Cnty., 645 F.3d 428, (D.C. Cir. 2011).
27. In re Aiken Cnty., No. 11-1271 (D.C. Cir. Nov. 4, 2011), available at http://pbadupws.nrc.gov/docs/ML1135/ML11353A092.pdf. Oral argument is scheduled for May 2, 2012. In re Aiken County, No. 11-1271 (D.C. Cir. Dec. 20, 2011), available at http://www.state.nv.us/nucwaste/licensing/order111220oral.pdf.
28. In re Aiken Cnty., 645 F.3d at 439 (Kavanaugh, J., concurring).
29. Judge Kavanaugh based his conclusion largely on his view that independent agencies are constitutionally suspect and a fluke of New Deal history.
30. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 533 (2007) (stating that an agency's "reasons for action or inaction must conform to the authorizing statute").
31. Gonzales v. Oregon, 546 U.S. 243, 258 (2006) ("The starting point for this inquiry is, of course, the language of the delegation provision itself.").
32. United States v. Mead Corp., 533 U.S. 218, 229 (2001) ("Yet it can still be apparent from the agency's generally conferred authority and other statutory circumstances that Congress would expect the agency to be able to speak with the force of law [in some circumstances].").
33. see also infra Part II.B.
34. See, e.g., Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 TEX. L. REV. 15, 72-78 (2010).
35. Ronald J. Krotoszynski, Jr., Cooperative Federalism, the New Formalism, and the Separation of Powers Revisited: Free Enterprise Fund and the Problem of Presidential Oversight of State Government Officers Enforcing Federal Law, 61 DUKE L.J. 1599 (2012) (positing that a formalistic view of the separation of powers and the unitary executive undermines the constitutionality of cooperative federalism).
36. Thomas O. McGarity, Administrative Law as Blood Sport: Policy Erosion in a Highly Partisan Age, 61 DUKE L.J. 1673 (2012) (describing modern administrative law as political blood sport).
37. Jodi A. Short, The Political Turn in Administrative Law: Power, Rationality, and Reasons, 61 DUKE L.J. 1813 (2012) (contending that a strong unitary-executive approach is inconsistent with hard-look review and developing an account whereby technocrats maintain an important role in bureaucratic structure).
38. Kathryn A. Watts, Regulatory Moratoria, 61 DUKE L.J. 1883 (2012) (examining regulatory moratoria and providing an account that leaves room for presidential control).
39. Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559, 701-706 (2006).
40. Greater Bos. Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970) (using the term "reasoned decision-making").
41. See APA § 10(e)(B)(1), 5 U.S.C. § 706(2)(A) (granting judicial authority to set aside agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").
42. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 866 (1984) ("When a challenge to an agency construction of a statutory provision . . . really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail.").
43. The arbitrary-and-capricious standard operates as a catch-all, applying to the vast areas of agency policymaking and discretion that fit no other category. See Camp v. Pitts, 411 U.S. 138, 138-40 (1973) (per curiam) (illustrating the catch-all approach). By contrast, substantialevidence review is limited to actions governed by the formal procedures set forth in sections 7 and 8 of the APA, 5 U.S.C. §§ 556-557.
44. Citizens To Pres. Overton Park v. Volpe, 401 U.S. 402, 414-15 (1971).
45. These distinctions are immaterial for purposes of this Article. See Richard J. Pierce, Jr., What Do the Studies of Judicial Review of Agency Actions Mean?, 63 ADMIN. L. REV. 77, 81 (2011) (stating that in many contexts, "the version of the substantial evidence doctrine . . . is virtually identical to the version of the arbitrary and capricious standard that was the basis for the Court's opinion in [Motor Vehicles Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)]").
46. See Lisa Schultz Bressman, Chevron's Mistake, 58 DUKE L.J. 549, 585 (2009) ("Although the relationship between the Chevron inquiry and the arbitrary and capricious test has confused courts, the effect of each is much the same.").
47. Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 CHI.-KENT L. REV. 1253, 1296 (1997) (predicting an increasing overlap between step two and arbitrariness review).
48. cf. Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 VA. L. REV. 597, 603-04 (2009) (condensing Chevron into the principle that courts must uphold any reasonable agency construction).
49. Chevron, 467 U.S. at 844 ("[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.").
50. State Farm, 463 U.S. at 43 (recognizing that the Court will not substitute its judgment for that of an agency).
51. I use each term broadly, to encompass other more specific reasons for deference. For instance, an agency's responsibility for administering a program could be viewed as a more specific reason to give deference on the basis of expertise. E.g., Chevron, 467 U.S. at 842-43 ("The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules . . . ." (first omission in original) (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)) (internal quotation mark omitted)).
52. Similarly, an agency's choice of democratic procedures-such as those that evidence "fairness and deliberation" or extra opportunities for participation-could be viewed as more specific reasons to give deference on the basis of political accountability. E.g., United States v. Mead Corp., 533 U.S. 218, 229-30 (2001).
53. see also David L. Markell, "Slack" in the Administrative State and Its Implications for Governance: The Issue of Accountability, 84 OR. L. REV. 1, 11 (2005) ("[T]he rulemaking arena in particular . . . is a prominent example of expanding opportunities for citizens to engage their governments.").
54. At the outset, I note that the focus of this Article is not prevailing models of agency behavior so much as models of judicial deference. The discussion here touches on the familiar models of behavior to assess their value in illuminating the origins of deference, but the emphasis of this Article is the role of judicial review given comparative institutional competence as well as separation-of-powers concerns.
55. JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 155 (1938).
56. See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 COLUM. L. REV. 1749, 1759 (2007) ("Such professionalism would sufficiently discipline agency behavior and allow [agencies] to deploy science and economics to produce sound policy.").
57. Fed. Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 602 (1944).
58. see also Mark Seidenfeld, The Irrelevance of Politics for Arbitrary and Capricious Review, 90 WASH. U. L. REV. (forthcoming 2012) (manuscript at 9), available at http://ssrn.com/abstract=1961753 ("Review for reasoned decisionmaking, not surprisingly, is best explained by the interest group model of the administrative state.").
59. Of course, some fluctuation exists in the rigor with which the reasoned-decisionmaking standard is applied. See Sidney A. Shapiro & Richard E. Levy, Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions, 1987 DUKE L.J. 387, 411 (noting a vacillation between levels of scrutiny).
60. Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 DUKE L.J. 1051, 1064-65 (1995) (describing the "proliferation of manipulable categories to which different degrees of deference apply").
61. Compare Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983) ("[A] reviewing court must remember that the Commission is making predictions, within its area of special expertise, at the frontiers of science. When examining this kind of scientific determination . . . a reviewing court must generally be at its most deferential."), with Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46-57 (1983) (conducting standard hard-look review and holding that the National Highway Traffic Safety Administration was not free to "abandon[]" its existing seatbelt requirements "without any consideration whatsoever of an airbags-only requirement"), and Bus.
62. Roundtable v. SEC, 647 F.3d 1144, 1148-56 (D.C. Cir. 2011) (conducting super hard-look review and vacating an SEC rule because, among other reasons, the Securities and Exchange Commission had "failed adequately to quantify the certain costs or to explain why those costs could not be quantified" and had "failed to respond to substantial problems raised by commenters").
63. see also Mayo Found. for Med. Educ. & Research v. United States, 131 S. Ct. 704, 713 (2011) ("We see no reason why our review of tax regulations should not be guided by agency expertise pursuant to Chevron to the same extent as our review of other regulations.").
64. see also Wendy E. Wagner, Revisiting the Impact of Judicial Review on Agency Rulemakings: An Empirical Investigation, 53 WM. & MARY L. REV. (forthcoming 2012) (demonstrating through comparative analysis that judicial opinions are easier to read than agencies' notices of rules regarding the same subject matter).
65. U.S. CONST. art. II, § 3.
66. see also Glen Staszewski, Reason-Giving and Accountability, 93 MINN. L. REV. 1253, 1264-65 (2009) (noting that "many, if not most, public law scholars would place the Chief Executive one position above the legislature in this particular hierarchy").
67. Myers v. United States, 272 U.S. 52 (1926).
68. U.S. CONST. art. II, § 1, cl. 1.
69. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 473-74 (2001) (upholding a broad delegation of authority to the EPA under the Clean Air Act, 42 U.S.C. §§ 7401-7671q (2006 & Supp. III 2009)).
70. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Note also that beginning in 1981, the president exercised more formalized oversight over executive agencies through cost-benefit analysis and the use of executive orders.
71. See Nina Mendelson, Another Word on the President's Statutory Authority over Agency Action, 79 FORDHAM L. REV. 2455, 2459 (2011) (describing the expansion of presidential oversight over executive agencies).
72. Chevron, 467 U.S. at 865 ("While agencies are not directly accountable to the people, the Chief Executive is . . . .").
73. see also Sierra Club v. Costle, 657 F.2d 298, 408 (D.C. Cir. 1981) ("But we do not believe that Congress intended that the courts convert informal rulemaking into a rarified technocratic process, unaffected by political considerations or the presence of Presidential power.").
74. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 190-91 (Breyer, J., dissenting) (arguing that the Food and Drug Administration (FDA) had jurisdiction to regulate tobacco because it could be held accountable for its regulations via the president).
75. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 864-865 (1984).
76. Clean Air Act, 42 U.S.C. §§ 7401-7671q (2006 & Supp. III 2009).
77. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 864-65 (1984).
78. See, e.g., Exec. Order No. 12,866, 3 C.F.R. 638, 638 (1994), reprinted in 5 U.S.C. § 601 app. at 745, 745 (2006) ("With this Executive order, the Federal Government begins a program to reform and make more efficient the regulatory process.").
79. See Administrative Procedure Act § 2(a), 5 U.S.C. § 551(1) (2006) ("'[A]gency' means each authority of the Government of the United States . . . .").
80. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3146 (2010) ("Since 1789, the Constitution has been understood to empower the President to keep these officers accountable-by removing them from office, if necessary.").
81. See, e.g., Energy Reorganization Act of 1974 § 201, 42 U.S.C. § 5841 (2006) (mandating that the NRC commissioners have five-year terms and that the NRC consist of five members, no more than three of whom may be of a single political party).
82. Neal Devins & David E. Lewis, Not-So Independent Agencies: Party Polarization and the Limits of Institutional Design, 88 B.U. L. REV. 459, 463 (2008) ("Some combination of concerns about expertise, due process, and the likely administrative actions of Presidents explains Congress's decision to constrain the President this way.").
83. Neal Devins, Unitariness and Independence: Solicitor General Control over Independent Agency Litigation, 82 CALIF. L. REV. 255, 260 (1994) ("For better or for worse, independent agencies are empowered to make policy at odds with White House priorities.").
84. Paul R. Verkuil, The Purposes and Limits of Independent Agencies, 1988 DUKE L.J. 257, 262 ("When Congress selects industries or segments of the economy for regulation and builds agencies around them, it expects the deciders to obtain expertise.").
85. see also Kevin M. Stack, Agency Independence After PCAOB, 32 CARDOZO L. REV. 2391, 2402 (2011) (noting that the organizational features of independent agencies make them well suited for performing adjudication).
86. Edward H. Levi, The Atomic Energy Act: An Analysis, BULL. OF THE ATOMIC SCIENTISTS (Atomic Scientists of Chi., Chi., Ill.), Sept. 1, 1946, at 18, 18.
87. see also H.R. REP. NO. 80-1973, at 3 (1948) ("The Atomic Energy Commission, because of the nature of its duties and the extent of its power, can exercise decisive control over the destiny of our Nation and the lives of our people.").
88. Exec. Order No. 9816, 3 C.F.R. 189 (Supp. 1946) (ordering the "transfer of properties and personnel to the Atomic Energy Commission").
89. Atomic Energy Act of 1954, ch. 1073, 68 Stat. 919 (codified as amended at 42 U.S.C. §§ 2011 to 2297h-13 (2006 & Supp. III 2009). This followed closely on the heels of President Eisenhower's Atoms for Peace policy. President Dwight D. Eisenhower, Address Before the General Assembly of the United Nations on Peaceful Uses of Atomic Energy, New York City, PUB. PAPERS 813 (Dec. 8, 1953) (outlining the policy).
90. Energy Reorganization Act of 1974, Pub. L. No. 93-438, 88 Stat. 1233 (codified as amended at 42 U.S.C. §§ 5801-5891 (2006 & Supp. III 2009)).
91. Department of Energy Organization Act, Pub. L. No. 95-91, 91 Stat. 565 (1977) (codified as amended at 42 U.S.C. §§ 7101 to 7385s-15 (2006 & Supp. III 2009)).
92. H.R. REP. NO. 93-1445, at 35 (1974) (Conf. Rep.), reprinted in 1974 U.S.C.C.A.N. 5538, 5448.
93. Department of Energy Organization Act § 102, 91 Stat. at 567-69 (codified as amended at 42 U.S.C. § 7112 (2006).
94. For example, the proposed but unenacted Nuclear Regulation Reorganization and Reform Act of 1988, S. 2443 (1988), would have abolished the NRC and created a new agency to be headed by an administrator directly accountable to the president, S. REP. NO. 100-364, at 1 (1988).
95. Roberta Rampton, Bickering Hurts U.S. Nuclear Agency: Report, REUTERS, Dec. 13, 2011, available at http://www.reuters.com/article/2011/12/13/us-usa-nuclear-issa-idUSTRE7BC25R20111213 ("A report from a top Congressional watchdog said on Tuesday the dysfunction within the five-member U.S. nuclear safety regulator is damaging the agency . . . .").
96. Nuclear Waste Policy Act (NWPA) of 1982 §§ 112-115, 42 U.S.C. §§ 10132-10135 (2006). As noted, the EPA also plays a role in setting the environmental standards that the repository must meet.
97. Site characterization included a detailed assessment of the hydrologic, hydrochemical, and thermomechanical properties of Yucca Mountain. See Review of DOE Site Characterization Process, NUCLEAR REGULATORY COMM'N, http://www.nrc.gov/waste/hlw-disposal/prelicensing/site-characterization.html (last visited Apr. 11, 2012).
98. see also NWPA § 113, 42 U.S.C. § 10133 (describing the rules for site-characterization activities).
99. See NWPA § 111(b)(4), 42 U.S.C. § 10131(b)(4) (establishing a Nuclear Waste Fund "composed of payments made by the generators and owners of such waste and spent fuel").
100. See NWPA § 112(b)(1)(A), 42 U.S.C. § 10132(b)(1)(A) (ordering the secretary to nominate "at least 5 sites that he determines suitable for site characterization for selection of the first repository site").
101. Originally, the NWPA called for constructing two repositories, one in the eastern and one in the western United States. See Nuclear Waste Policy Act of 1982, Pub. L. No. 97-245, tit. I, subtit. A, §§ 112 (b)(1)(C), 114 (a)(2)(A), (d)(1), 96 Stat. 2201, 2208, 2214, 2215 (1983) (codified at 42 U.S.C. §§ 10132(b)(1)(C), 10134(a)(2)(A), (d)(1) (1982)) (imposing deadlines for selection of a second repository site). Plans for a second eastern site were cancelled when Congress designated Yucca Mountain.
102. See Nuclear Waste Policy Amendments Act of 1987, Pub. L. No. 100-203, tit. V, subtit. A, pt. A., secs. 5011, 5012, §§ 160(a), 161(a), 101 Stat. 1330, 1330-228, 1330-231 (codified at 42 U.S.C. §§ 10172(a), 10172a(a) (2006)) (providing for termination "of site specific activities at all candidate sites other than the Yucca Mountain site" and prohibiting the consideration of a second repository unless specifically authorized by Congress).
103. See Nuclear Energy Inst. v. EPA, 373 F.3d 1251, 1259 (D.C. Cir. 2004) (describing the history of the NRC).
104. Nuclear Waste Policy Amendments Act of 1987, sec. 5011, § 160(a), 101 Stat. at 1330-228 (codified at 42 U.S.C. § 10172(a) (2006)).
105. U.S. DEP'T OF ENERGY, RECOMMENDATION BY THE SECRETARY OF ENERGY REGARDING THE SUITABILITY OF THE YUCCA MOUNTAIN SITE FOR A REPOSITORY UNDER THE NUCLEAR WASTE POLICY ACT OF 1982 (2002), available at http://energy.gov/sites/prod/files/edg/media/Secretary_s_Recommendation_Report.pdf.
106. Press Release, White House, Yucca Mountain Statement (Feb. 15, 2002), available at http://georgewbush-whitehouse.archives.gov/news/releases/2002/02/20020215-11.html.
107. Press Release, Office of Kenny C. Gwynn, Governor of Nev., Statement of Reasons Supporting the Governor of Nevada's Notice of Disapproval of the Proposed Yucca Mountain Project (Apr. 8, 2002), available at http://www.yuccamountain.org/pdf/govveto0402.pdf.
108. Joint Resolution of July 23, 2002, Pub. L. No. 107-200, 116 Stat. 735 (2002) (codified at 42 U.S.C. § 10135 note (2006)) ("Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That there hereby is approved the site at Yucca Mountain, Nevada, for a repository, with respect to which a notice of disapproval was submitted by the Governor of the State of Nevada on April 8, 2002.").
109. See, e.g., Nevada v. U.S. Dep't of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006) (rejecting a challenge to the DOE's Environmental Impact Statement for Yucca Mountain).
110. Nevada v. U.S. Dep't of Energy, 400 F.3d 9, 17 (D.C. Cir. 2005) (rejecting a challenge to the order denying Nevada funding for its participation before the NRC).
111. Nuclear Energy Inst. v. EPA, 373 F.3d 1251, 1259 (D.C. Cir. 2004) (upholding most challenges to the regulations implementing the NWPA and upholding the joint congressional resolution designating the site).
112. Nuclear Energy Inst., 373 F.3d at 1304 ("It is not for this or any other court to examine the strength of the evidence upon which Congress based its judgment [to approve Yucca Mountain].").
113. U.S. DEP'T OF ENERGY, YUCCA MOUNTAIN REPOSITORY LICENSE APPLICATION: SAFETY ANALYSIS REPORT (2008), available at http://www.nrc.gov/waste/hlw-disposal/yuccalic-app/yucca-lic-app-safety-report.html.
114. Letter from Edward F. Sproat, III, Dir., Office of Civilian Radioactive Waste Mgmt., U.S. Dep't of Energy, to Michael F. Weber, Dir., Office of Nuclear Material Safety & Safeguards, Nuclear Regulatory Comm'n (June 3, 2008), available at http://pbadupws.nrc.gov/docs/ML0815/ML081560407.pdf (submitting an application for a construction license).
115. See Bernd Debusmann, Obama, Politics and Nuclear Waste, REUTERS GREAT DEBATE BLOG (Mar. 5, 2010, 12:34 EST), http://blogs.reuters.com/great-debate/2010/03/05/obamapolitics-and-nuclear-waste ("During Nevada stops in his campaign for the presidency, Obama came out strongly against Yucca Mountain, a position that helped him beat his Republican rival John McCain and win the hotly-contested state's five electoral votes."). Senator Reid is strongly opposed to the repository.
116. See Killing the Yucca Mountain Nuclear Waste Dump, HARRY REID, http://www.reid.senate.gov/about/upload/yucca-mountain-accomplishments.pdf (last visited Apr. 11, 2012) (expressing opposition to the Yucca Mountain Project and referencing President Obama's campaign promise to cut funding for the repository).
117. Richard Harris, Obama Cuts Funds to Nuclear Waste Repository, NPR (Mar. 11, 2009), http://www.npr.org/templates/story/story.php?storyId=101689489.
118. See U.S. Department of Energy's Motion To Withdraw at 1-2, U.S. Dep't of Energy, No. LBP-10-11 (Atomic Safety & Licensing Bd., Nuclear Regulatory Comm'n June 29, 2010), aff'd by an equally divided commission, No. CLI-11-07 (Nuclear Regulatory Comm'n Sept. 9, 2011), available at http://pbadupws.nrc.gov/docs/ML1006/ML100621397.pdf.
119. Memorandum of Jan. 29, 2010, 3 C.F.R. 299 (2011).
120. U.S. Dep't of Energy, No. LBP-10-11. slip op. at 5.
121. U.S. Department of Energy's Reply to the Responses to the Motion To Withdraw at 1, U.S. Dep't of Energy, No. LBP-10-11, available at http://www.state.nv.us/nucwaste/licensing/doe100527response.pdf.
122. See Nuclear Waste Policy Act (NWPA) of 1982 § 114(b), 42 U.S.C. § 10134(b) (2006) ("[T]he Secretary shall submit to the Commission an application for a construction authorization for a repository at such site . . . .").
123. U.S. Dep't of Energy, No. LBP-10-11, slip op. at 5.
124. see also NWPA § 114(d), 42 U.S.C. § 10134(d) ("[T]he Commission shall consider an application for a construction authorization for all or part of a repository . . . .").
125. NWPA § 113(c)(3)(F), 42 U.S.C. § 10133(c)(3)(F).
126. U.S. Dep't of Energy, No. LBP-10-11, slip op. at 8-9.
127. U.S. Dep't of Energy, No. LBP-10-11, slip op. at 19.
128. Massachusetts v. EPA, 549 U.S. 497 (2007).
129. In re Aiken Cnty., 645 F.3d 428, 431 (D.C. Cir. 2011).
130. Humphrey's Ex'r v. United States, 292 U.S. 602 (1935).
131. In re Aiken Cnty., 645 F.3d at 441-42 (Kavanaugh, J., concurring) (noting that other cases from that period have been discredited).
132. Geoffrey P. Miller, Independent Agencies, 1986 SUP. CT. REV. 41, 93 (calling Humphrey's Executor "one of the more egregious opinions to be found on the pages of the United States Supreme Court Reports") .
133. Acknowledging that Humphrey's Executor remains binding precedent, however, Judge Kavanaugh mentioned various proposals to enhance the accountability and effectiveness of independent agencies. In re Aiken Cnty., 645 F.3d at 446-48 (Kavanaugh, J., concurring).
134. U.S. Dep't of Energy, No. CLI-11-07, slip op. at 1 (Nuclear Regulatory Comm'n Sept. 9, 2011), available at http://www.nrc.gov/reading-rm/doc-collections/commission/orders/2011/2011-07cli.pdf ("Upon consideration of all filings in this matter, the Commission finds itself evenly divided on whether to take the affirmative action of overturning or upholding the Board's decision.").
135. See U.S. Dep't of Energy, No. LBP-11-24, slip op. at 2 (Atomic Safety & Licensing Bd., Nuclear Regulatory Comm'n Sept. 30, 2011), available at http://pbadupws.nrc.gov/docs/ML1127/ML11273A041.pdf ("The Board's decision to deny DOE's motion to withdraw . . . therefore stands.").
136. The decision would have been neither final nor ripe. In re Aiken Cnty., 645 F.3d at 435- 37.
137. See U.S. Dep't of Energy, No. CLI-11-07, slip op. at 1-2 ("Consistent with budgetary limitations, . . . . we hereby . . . direct the Board to, by the close of the current fiscal year, complete all necessary and appropriate case management activities . . . .").
138. See U.S. Dep't of Energy, No. LBP-11-24, slip op. at 3 ("[B]ecause both future [dedicated appropriations] and [federal-employee positions] for this proceeding are uncertain, and consistent with the Commission's Memorandum and Order of September 9, 2011, this proceeding is suspended.").
139. The matter has been granted expedited review. See In re Aiken Cnty., No. 11-1271 (D.C. Cir. Nov. 4, 2011) (per curiam), available at http://pbadupws.nrc.gov/docs/ML1135/ML11353A092.pdf (granting a motion to expedite and setting the briefing schedule). Note that the court in In re Aiken County suggested in dicta that were the NRC to fail to act according to the congressional deadline, it would be subject to a new cause of action under Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984). In re Aiken Cnty., 645 F.3d at 436.
140. The claim against the NRC raises this argument. Brief of Petitioners, In re Aiken Cnty., No. 11-1271 (D.C. Cir. Dec. 5, 2011), available at http://www.state.nv.us/nucwaste/licensing/dc111205brief.pdf.
141. see also In re Aiken Cnty., 645 F.3d at 438 (Brown, J., concurring) (suggesting that the NRC had already "abdicated its statutory responsibility under the NWPA" by announcing that it would not be resolving licensing questions due to budget concerns).
142. J.R. DeShazo & Jody Freeman, Public Agencies as Lobbyists, 105 COLUM. L. REV. 2217, 2221 (2005) ("This Article explores the problem of agency reluctance in the face of multiple mandates and explains how and why agencies might resist secondary mandates.").
143. Robert Durant, Michael R. Fitzgerald & Larry W. Thomas, When Government Regulates Itself: The EPA/TVA Air Pollution Control Experience, 43 AM. SOC'Y PUB. ADMIN. 209, 210-14 (1983) (documenting difficulties between the Tennessee Valley Authority and the EPA).
144. Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 SUP. CT. REV. 201, 212 ("A statute that allocates authority to multiple government entities relies on competing agents as a mechanism for managing agency problems.").
145. Jason Marisam, Duplicative Delegations, 63 ADMIN. L. REV. 181, 224 (2011) ("Because of . . . high costs, bureaucratic redundancies are most often worthwhile when the redundant agency provides a significant benefit by safeguarding against high-magnitude harm.").
146. see also Am. Farm Bureau Fed'n v. EPA, 559 F.3d 512, 521 (D.C. Cir. 2009) (holding that the EPA had failed to explain adequately its rejection of recommendations by the Clean Air Scientific Advisory Committee, despite a statutory provision requiring such an explanation).
147. The Act provides that the secretary may issue a license after making numerous findings, subject to compliance with section 102 of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332 (2006). DWPA § 5, 33 U.S.C. § 1504.
148. see also Gulf Restoration Network v. U.S. Dep't of Transp., 452 F.3d 362, 365-67 (5th Cir. 2006) (describing the statutory scheme in the context of a challenge to an environmental impact statement for a liquefiednatural-gas construction-license application). In effect, the EPA can veto a license if it determines that the port will not comply with various environmental statutes, including the CAA and Clean Water Act, 33 U.S.C. §§ 1251-1387 (2006 & Supp. IV 2010). DWPA § 4(c)(6), 33 U.S.C. § 1503(c)(6).
149. Dodd-Frank Act, 124 Stat. 1376.
150. Dodd-Frank Act § 1023(c)(3)(A), 124 Stat. at 1985-86 (codified at 12 U.S.C. § 5513(c)(3)(A)) (requiring a two-thirds vote).
151. Note, however, that much of the FSOC's membership is drawn from independent agencies. Dodd-Frank Act § 111(b), 124 Stat. at 1392-93 (codified at 12 U.S.C. § 5321(b)).
152. See Dodd-Frank Act § 203(b), 124 Stat. at 1451 (codified at 12 U.S.C. § 5383(b)) (setting forth the standards for this determination).
153. Dodd-Frank Act § 203(b), 124 Stat. at 1451 (codified at 12 U.S.C. § 5383(b)).
154. Paperwork Reduction Act of 1980, Pub. L. No. 96-511, 94 Stat. 2812 (codified as amended in scattered sections of the U.S. Code).
155. Exec. Order No. 12,866, 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 745 (2006), and 5 U.S.C. § 601 app. at 108 (Supp. IV 2010).
156. See also Exec. Order No. 13,563, 76 Fed. Reg. 3821 (Jan. 21, 2011) (supplementing and reaffirming the "principles, structures, and definitions . . . established in" Executive Order 12,866).
157. Although it may seem odd that a political agency (OIRA) would trump a similarly political agency (such as the EPA)-after all, both are subject to presidential control-OIRA generally has a much closer relationship with the president and is therefore in a position to exert enormous pressure. See generally RENA STEINZOR, MICHAEL PATOKA & JAMES GOODWIN, CTR. FOR PROGRESSIVE REFORM, WHITE PAPER NO. 1111, BEHIND CLOSED DOORS AT THE WHITE HOUSE: HOW POLITICS TRUMPS PROTECTION OF PUBLIC HEALTH, WORKER SAFETY, AND THE ENVIRONMENT (2011) (detailing study findings suggesting that OIRA's policies have led to a disproportionate impact by industry groups as compared to public-interest groups).
158. John M. Broder, Obama Abandons a Stricter Limit on Air Pollution, N.Y. TIMES, Sept. 3, 2011, at A1.
159. See, e.g., Exec. Order No. 12,866 § 10, 3 C.F.R. at 649, reprinted in 5 U.S.C. § 601 app. at 749 (2006) ("This Executive order . . . does not create any right or benefit, substantive or procedural, enforceable at law or equity . . . .").
160. See Executive Order No. 13,563 § 7(b)(i), 76 Fed. Reg. at 3822 ("Nothing in this order shall . . . impair or otherwise affect . . . authority granted by law to a department or agency, or the head thereof . . . .").
161. see also Natural Res. Def. Council v. EPA, 797 F. Supp. 194, 198 (E.D.N.Y. 1992) ("OMB's review of regulations does not apply where it would conflict with statutory deadlines.").
162. See generally ROBERT F. DURANT, WHEN GOVERNMENT REGULATES ITSELF: EPA, TVA, AND POLLUTION CONTROL IN THE 1970S (1985) (detailing the controversy).
163. See McCarthy v. Middle Tenn. Elec. Membership Corp., 466 F.3d 399, 406 (6th Cir. 2006) (holding that the TVA is a government agency for purposes of the APA).
164. See Melinda R. Kassen, The Inadequacies of Congressional Attempts To Legislate Federal Facility Compliance with Environmental Statutes, 54 MD. L. REV. 1475, 1476 (1995) ("[The] EPA and states have had difficulty enforcing environmental regulations against federal facilities.").
165. see also Tenn. Valley Auth. v. Whitman, 336 F.3d 1236, 1260 (11th Cir. 2003) (holding the EPA's practice of issuing Administrative Compliance Orders to the TVA to be unconstitutional).
166. cf. Sierra Club v. EPA, No. 95-1562, 1996 WL 678511, at *3 (D.C. Cir. Oct. 22, 1996) (upholding the EPA's rescission of a rule regulating radionuclide emissions from nuclearpower plants when the NRC's regulations sufficiently protected public health). In the CAA, as well as other federal environmental statutes, a significant federalism dimension is present. Although regrettably beyond the scope of this Article, that dimension merits close attention and could provide important insights for the deference dilemma.
167. See Miss. Comm'n on Natural Res. v. Costle, 625 F.2d 1269, 1271 (5th Cir. 1980) (upholding the EPA's disapproval of state waterquality standards).
168. ROBERT L. GLICKSMAN, DAVID L. MARKELL, WILLIAM W. BUZBEE, DANIEL R. MANDELKER & DANIEL BODANSKY, ENVIRONMENTAL PROTECTION: LAW AND POLICY 554-680 (6th ed. 2011) (describing the distribution of federal and state responsibilities under the Clean Water Act).
169. see also Big Rivers Elec. Corp. v. EPA, 523 F.2d 16, 22 (1975) (upholding the EPA's view of the appropriate method to reduce SO2 emissions).
170. see also Neal Devins, Unitariness and Independence: Solicitor General Control over Independent Agency Litigation, 82 CALIF. L. REV. 255 (1994) (criticizing the solicitor general's control over independent-agency litigation before the Supreme Court).
171. See, e.g., Hinson v. Nat'l Transp. Safety Bd., 57 F.3d 1144, 1151-52 (D.C. Cir 1995) (adjudicating a Federal Aviation Administration (FAA) petition for review of a National Transportation Safety Board order).
172. Nuclear Regulatory Comm'n v. Fed. Labor Relations Auth., 859 F.2d 302, 312 (4th Cir. 1988) (ruling on an NRC petition for review of a bargaining order by the Federal Labor Relations Authority), vacated sub nom. Nat'l Treasury Emps. Union v. Nuclear Regulatory Comm'n, 496 U.S. 901 (1990).
173. See, e.g., Gulf Restoration Network v. U.S. Dep't of Transp., 452 F.3d 362, 366 (5th Cir. 2006) (considering claims against the secretary of transportation and describing the National Oceanic and Atmospheric Administration Fisheries Service's concern about the secretary's action).
174. In re Aiken Cnty., 645 F.3d 428, 430 (D.C. Cir. 2011).
175. Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144 (1991).
176. Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (2006 & Supp. IV 2010).
177. Martin, 499 U.S. at 152-55 (examining the structure of the split-enforcement scheme and its legislative history).
178. see also Hinson v. Nat'l Transp. Safety Bd., 57 F.3d 1144, 1148 n.2 (D.C. Cir. 1995) (noting that had the FAA not waived its claim to Chevron deference, it would have been entitled to that deference under the statutory scheme).
179. Martin, 499 U.S. at 158.
180. Envtl. Def. Fund v. Thomas, 627 F. Supp. 566 (D.D.C. 1986).
181. Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6992k (2006 & Supp. III 2009).
182. Thomas, 627 F. Supp. at 567.
183. Thomas, 627 F. Supp. at 570.
184. see also Natural Res. Def. Council v. EPA, 797 F. Supp. 194, 198 (E.D.N.Y. 1992) ("OMB's review of regulations does not apply where it would conflict with statutory deadlines.").
185. This conclusion holds in the cooperative-federalism context as well. See Miss. Comm'n on Natural Res. v. Costle, 625 F.2d 1269, 1276 (5th Cir. 1980) (emphasizing congressional intent and whether the EPA had exceeded its statutory jurisdiction in a dispute between a state agency and the EPA).
186. Indeed, the concern over too little accountability is at least partly what motivated the Supreme Court in Free Enterprise Fund to reject a multilayered independent structure. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3153-55 (2010).
187. Humphrey's Ex'r v. United States, 295 U.S. 602, 621-25 (1935) (examining the statutory language and legislative history of the Federal Trade Commission Act, ch. 311, 38 Stat. 717 (1914) (codified as amended at 15 U.S.C. §§ 41-58 (2006 & Supp. IV 2010))).
188. Likewise, the dispute between the EPA and the TVA ultimately concluded against a backdrop of clear congressional intent.
189. United States v. Mead, 533 U.S. 218 (2001).
190. see also Chevron U.S.A. Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (reasoning that if congressional intent is clear, the analysis stops, but that if intent is unclear, Congress has impliedly delegated the matter to the agency's reasonable interpretive powers).
191. For purposes of this analysis, I assume that constitutional objections to the independent agency such as those present in Free Enterprise Fund are not present. I further acknowledge, but do not address here, the strong unitary-executive view that would require the president to exercise control over all of the agencies pursuant to his duty to execute the law.
192. Cf. generally STEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH 24 (2008).
193. A potential difficulty may arise in locating expertise appropriately. At a macro level, for example, both the DOE and the NRC have significant expertise in matters pertaining to nuclear energy. And both fill gaps of scientific uncertainty with policy choices. If courts wish to consider expertise for purposes of making deference decisions, however, they will need to evaluate the relevant statutory scheme at a level of high specificity.
194. Given the strong presence of the other factors I mention that favor deference to the NRC on the license-withdrawal issue, I would not expect the DOE's management of the Nuclear Waste Fund to be determinative in this particular dispute.
195. See Portland Audubon Soc'y v. Endangered Species Comm'n, 984 F.2d 1534, 1543-48 (9th Cir. 1993) (holding that the president is subject to the prohibition on ex parte communications when a formal adjudication decision is pending before specified agency officials).
196. Exec. Order No. 12,866 § 3(d)(1), 3 C.F.R. 638, 641 (1994), reprinted in 5 U.S.C. § 601 app. at 745, 746 (2006).
197. see also Note, OIRA Avoidance, 124 HARV. L. REV. 994, 1002 (2011) ("[A]gencies retain the ability to take action in forms not subject to review under Executive Order 12,866-formal rulemaking and adjudication.").
198. Exec. Order No. 12,866 § 3(d), 3 C.F.R. at 641, reprinted in 6 U.S.C. § 601 app. at 746.
199. Whether an agency might strategically choose to adopt formal procedures as a means of insulating itself from presidential control is interesting to contemplate. My research has not uncovered any examples of this type of behavior. But see Robert V. Percival, Who's In Charge? Does the President Have Directive Authority over Agency Regulatory Decisions?, 79 FORDHAM L. REV. 2487, 2537-38 (2011) ("Because adjudications cannot be the subjects of presidential directive authority under any of the theories that support it, agencies can insulate themselves from presidential influence by choosing to set policy through adjudication.").
200. See Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 370 (1986) (arguing that the notion of legislative intent to delegate the lawinterpreting function to agencies is a legal fiction that courts apply when it seems to them that the "fair and efficient administration of [a] statute in light of its substantive purpose" requires judicial deference to agency interpretation).
201. Ronald J. Krotoszynski, Jr., Why Deference?: Implied Delegations, Agency Expertise, and the Misplaced Legacy of Skidmore, 54 ADMIN. L. REV. 735, 751 (2002) (calling Mead's delegation reasoning a "naked power grab by the federal courts").
202. cf. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 521 ("One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists.").
203. see also ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16-23 (1986) (advocating for a restrained review in light of countermajoritarian difficulty). As I describe in this Article, I believe my solution to the deference dilemma is consistent with either approach.