Scope of review for informal rulemaking
✅ Informal Rulemaking and Scope of Review — Overview
What is Informal Rulemaking?
Informal rulemaking (also called notice-and-comment rulemaking) is a process agencies use to create regulations without formal trial-like hearings. Under the APA, agencies must:
Publish a notice of proposed rulemaking,
Allow public comment,
Consider comments before issuing the final rule.
Judicial Review of Informal Rulemaking
Courts do not reweigh facts or substitute their judgment for the agency’s. Instead, courts review whether:
The agency followed procedural requirements,
The rule is within the agency’s statutory authority,
The rule is reasonable and not arbitrary or capricious,
The agency adequately considered relevant evidence and arguments,
The agency’s reasoning is explained and rational.
The standard applied is the “arbitrary and capricious” standard under 5 U.S.C. § 706(2)(A).
⚖️ Key Case Law on Scope of Review for Informal Rulemaking
1. Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983)
📝 Facts:
The National Highway Traffic Safety Administration (NHTSA) rescinded a previously adopted passive restraint requirement without giving a detailed explanation.
⚖️ Supreme Court Holding:
The rescission was arbitrary and capricious because NHTSA failed to provide a reasoned explanation.
Agencies must consider all relevant factors and articulate a rational connection between facts found and choices made.
🔍 Importance:
Established that courts require reasoned decision-making in informal rulemaking.
Agencies cannot act irrationally or inconsistently without explanation.
2. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
📝 Facts:
EPA’s interpretation of the Clean Air Act in defining “stationary source” was challenged.
⚖️ Supreme Court Holding:
Established the Chevron deference doctrine.
If statute is ambiguous, courts defer to a reasonable agency interpretation.
🔍 Importance:
Courts limit scope of review by deferring to agency expertise on statutory interpretation during rulemaking.
Emphasizes that judicial review is not de novo, but deferential.
3. Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359 (1998)
📝 Facts:
The NLRB issued a rule affecting collective bargaining procedures.
⚖️ Supreme Court Holding:
Confirmed the arbitrary and capricious standard applies to informal rulemaking.
Clarified that the court reviews whether the agency examined relevant data and explained its decision adequately.
🔍 Importance:
Reinforces that courts do not substitute their judgment but ensure agency reasonableness.
Courts can reject rules lacking factual basis or adequate explanation.
4. FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)
📝 Facts:
FCC changed its indecency policy and penalized broadcasters without prior notice of policy change.
⚖️ Supreme Court Holding:
Agency must provide reasoned explanation for policy changes, even in informal rulemaking.
Agencies cannot depart from precedent without justification.
🔍 Importance:
Reinforces that informal rulemaking requires transparency and accountability.
Courts review agency rationale for changes under the arbitrary and capricious standard.
5. Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87 (1983)
📝 Facts:
EPA’s interpretation of “best available technology” for pollution control was challenged.
⚖️ Supreme Court Holding:
Court deferred to EPA’s reasonable interpretation under Chevron.
Emphasized that the agency’s expertise warrants judicial deference.
🔍 Importance:
Shows courts accept agency expertise in complex technical rulemaking.
Limits court’s scope of review to reasonableness, not correctness.
6. Massachusetts v. EPA, 549 U.S. 497 (2007)
📝 Facts:
EPA refused to regulate greenhouse gases, citing policy reasons.
⚖️ Supreme Court Holding:
EPA must ground decisions in statutory authority and provide a reasoned explanation.
Arbitrary refusal to regulate when statute mandates it violates APA.
🔍 Importance:
Reinforces courts will review agency inaction as well as actions.
Agencies cannot evade responsibilities under pretextual reasons.
7. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004)
📝 Facts:
Plaintiffs sought to compel agency to take certain actions.
⚖️ Supreme Court Holding:
Courts only compel action where a “clear, mandatory duty” exists.
Courts cannot impose arbitrary standards beyond the statute.
🔍 Importance:
Limits scope of review by focusing on statutory mandates.
Courts respect agency discretion in rulemaking and enforcement.
📌 Summary Table of Key Principles from Cases
| Case | Review Focus | Judicial Standard | Significance |
|---|---|---|---|
| State Farm (1983) | Reasoned explanation for rule changes | Arbitrary & capricious | Agency must provide rational basis for decisions |
| Chevron (1984) | Statutory interpretation by agency | Deference if reasonable | Courts defer to agency interpretation |
| Allentown Mack (1998) | Factual basis and explanation | Arbitrary & capricious | Review limited to ensuring rationality |
| FCC v. Fox (2009) | Policy changes with prior justification | Arbitrary & capricious | Agencies must explain departures from precedent |
| Baltimore Gas & Electric (1983) | Technical expertise & interpretation | Chevron deference | Deference in technical regulatory judgments |
| Massachusetts v. EPA (2007) | Agency refusal to act under statutory mandate | Arbitrary & capricious review | No evasion of statutory duties |
| Norton v. SUWA (2004) | Agency duty to act | Clear, mandatory duty required | Courts limit intervention without clear mandate |
✅ Conclusion: Scope of Review for Informal Rulemaking
Courts do not substitute their judgment but ensure agency actions are:
Within statutory authority,
Based on a reasonable interpretation of the law,
Supported by a rational explanation and consideration of relevant evidence,
Not arbitrary, capricious, or an abuse of discretion.
Courts give Chevron deference to agency statutory interpretations.
Courts require agencies to explain changes in policy and consider public comments.
Agencies have discretion, but it is bounded by reasoned decision-making and legal limits.
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