interests, then the rule may be arbitrary & capricious. Rulemaking- Rulemaking § 553(e) of the APA Massachusetts v EPA: When a rulemaking petition is petitions requires an agency to give Mass. Brought an filed, the agency must offer an interested person the action against the reasoned explanation for its right to petition for the EPA for not refusal to grant the petition. issuance, amendment, or promulgating rules repeal of a rule. addressing climate Scalia, Thomas & Alito change. EPA argued dissent: The EPA did give that it did not have adequate reasons why they authority to do so, didn’t want to make the rule, and even if it did, it and dissenters have no idea was not the right what else the court can time t address it. EPA possibly expect. didn’t explain sufficiently why it **SEE ALSO- Scalia thought didin’t promulgate should have deferred to EPA’s the rule, thus interpretation of air pollutant, decision not to is even though the EPA did not arbitrary & exercise its authority to adopt capricious rules (so skidmore should apply) Rulemaking- Rulemaking Denial of a petition is Telecommunications Whether review is available Petition – Reviewability considered final agency Research & Action Time agencies take to action for purposes of Center v FCC make decisions must be reviewability. However, if governed by a rule of the agency merely refuses reason to answer the petition, Where congress has there is no final agency provided a timetable or action. The D.C Circuit other indication of the court in speed with which it Telecommunications expects the agency to Research and Action Ctr proceed in the enabling fashioned an exception to statute, that statutory the finality requirement for scheme may supply unreasonably delays in content for this rule of agency response to a reason petition Delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake The court should consider the effect of expediting delayed action on agency activities of a higher or completing priority The court should also take into account the nature and extent of the
interests, then the rule may be arbitrary & capricious. Rulemaking- Rulemaking petitions § 553(e) of the APA requires an agency to give an interested person the right to petition for the issuance, amendment, or repeal of a rule. Massachusetts v EPA: Mass. Brought an action against the EPA for not promulgating rules addressing climate change. EPA argued that it did not have authority to do so, and even if it did, it was not the right time t address it. EPA didn’t explain sufficiently why it didin’t promulgate the rule, thus decision not to is arbitrary & capricious When a rulemaking petition is filed, the agency must offer reasoned explanation for its refusal to grant the petition. Scalia, Thomas & Alito dissent: The EPA did give adequate reasons why they didn’t want to make the rule, and dissenters have no idea what else the court can possibly expect. **SEE ALSO- Scalia thought should have deferred to EPA’s interpretation of air pollutant, even though the EPA did not exercise its authority to adopt rules (so skidmore should apply) Rulemaking- Rulemaking Petition – Reviewability Denial of a petition is considered final agency action for purposes of reviewability. However, if the agency merely refuses to answer the petition, there is no final agency action. The D.C Circuit court in Telecommunications Research and Action Ctr fashioned an exception to the finality requirement for unreasonably delays in agency response to a petition Telecommunications Research & Action Center v FCC Whether review is available Time agencies take to make decisions must be governed by a rule of reason Where congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason Delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake The court should consider the effect of expediting delayed action on agency activities of a higher or completing priority The court should also take into account the nature and extent of the
Administrative%20Law%20-%20Glicksman%20-%20Fall%202010.docx