Judicial review of withdrawn rules
1. Context and Legal Framework
Agencies often issue rules or regulations under statutory authority.
Sometimes agencies decide to withdraw, repeal, or rescind these rules.
A key question in administrative law: Can courts review and possibly invalidate an agency’s decision to withdraw a rule?
The Administrative Procedure Act (APA) governs rulemaking and withdrawal:
Section 553 requires notice-and-comment for substantive rulemaking.
Section 706(2)(A) allows courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
2. Key Legal Issues in Judicial Review of Withdrawn Rules
Is the withdrawal a “final agency action” subject to review?
Did the agency follow APA procedural requirements (notice-and-comment)?
Was the withdrawal arbitrary or capricious?
Does the agency have discretion to change policies?
Does the “change of policy” doctrine apply, requiring a reasoned explanation?
🔷 Important Case Law with Detailed Explanations
✅ 1. FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)
Facts: FCC changed its policy regarding fleeting expletives without notice-and-comment.
Issue: Whether the FCC’s policy change (withdrawal of prior approach) required notice-and-comment.
Holding: The Supreme Court held agencies must provide a reasoned explanation when changing policies but may not need full notice-and-comment if the change is interpretive.
Significance: Establishes that withdrawal or policy change is reviewable and must be reasoned, but not always requiring full notice-and-comment.
✅ 2. Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983)
Facts: NHTSA rescinded a safety standard without adequate explanation.
Issue: Whether the rescission was arbitrary and capricious.
Holding: The Supreme Court invalidated the rescission for failing to offer a reasoned analysis.
Significance: Agencies must provide reasoned explanations when withdrawing rules; the arbitrary and capricious standard applies to withdrawals.
✅ 3. Perez v. Mortgage Bankers Association, 575 U.S. 92 (2015)
Facts: DOL rescinded a rule without notice-and-comment, asserting the rescission was interpretive.
Issue: Whether notice-and-comment is required for rescinding rules.
Holding: The Court held notice-and-comment is required for substantive rule rescission, overruling prior cases.
Significance: Clarifies that withdrawal of substantive rules generally requires notice-and-comment, increasing procedural protections.
✅ 4. Natural Resources Defense Council v. U.S. EPA, 638 F.3d 1183 (9th Cir. 2011)
Facts: EPA withdrew a rule limiting emissions without proper explanation.
Issue: Whether the withdrawal was arbitrary and capricious.
Holding: The court vacated the withdrawal, finding EPA failed to provide a reasoned explanation.
Significance: Reinforces that courts will review and potentially invalidate rule withdrawals lacking reasoned analysis.
✅ 5. Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012)
Facts: EPA attempted to withdraw or delay climate change regulations.
Issue: Whether EPA complied with procedural and substantive APA requirements.
Holding: The court struck down the withdrawal/delay as procedurally improper and unsupported by reasoned explanation.
Significance: Shows courts enforcing strict standards for agency withdrawals, especially on significant policy changes.
🔷 Summary of Doctrinal Principles
| Legal Issue | Explanation | Case Example |
|---|---|---|
| Final Agency Action | Withdrawals are generally reviewable | FCC v. Fox |
| Notice-and-Comment Requirement | Usually required for substantive rule rescission | Perez v. Mortgage Bankers |
| Arbitrary and Capricious Standard | Agency must provide a reasoned explanation for withdrawal | Motor Vehicle Mfrs. v. State Farm |
| Discretion to Change Policy | Agencies have discretion but must explain changes | FCC v. Fox |
| Judicial Enforcement | Courts will invalidate withdrawals lacking reasoned basis | NRDC v. EPA, Coalition for Responsible Regulation |
🔷 Conclusion
Judicial review of withdrawn rules ensures agencies do not reverse policies arbitrarily or without appropriate procedures. Courts require:
Final agency action for review,
Adequate notice-and-comment when rescinding substantive rules,
A reasoned explanation consistent with administrative law principles.
This framework protects regulated parties and the public from abrupt or unexplained policy reversals, maintaining administrative accountability.
RELATED Blog
0 comments