Public Institutions

Vermont Yankee -

Limits on the APA’s Procedural Requirements

In 2021, Congress passes a law to limit the amount of food coloring in candy. The law authorizes the FDA to regulate food coloring in candy sold to the public. It says “After a hearing, the Agency may issue rules setting limits on the amount of food coloring in candy.” The FDA promulgates a rule limiting the amount of food coloring allowed in candy. During the rulemaking process, the Coco Candy company asks the FDA to meet with expert witnesses that can speak to the safety of glitter nail polish, and explain how the proposed rule will make many of their candy types illegal, destroying their business.

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If the FDA refuses to hear Coco Candy’s witness, the agency would:

1. Violate the APA, because the statutory language requiring a hearing triggers formal rulemaking procedures.
2. Not violate the APA, because APA §§ 556 and 557 are only triggered if Congress requires agencies to make rules on the record after the opportunity for an agency hearing.
3. Not violate the APA, because the final rule is a logical outgrowth of the statute.

Case Law Questions

United States v. Allegheny Ludlum Steel Corp.

&

United States v. Florida East Coast Railway Co.

When is formal rulemaking required?

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Vermont Yankee Nuclear Power Corp. v. NRDC: When can a court impose procedural requirements on agency?

Case

Law

Answers

Vermont Yankee Nuclear Power Co.

v. NRDC

Vermont Yankee Background

• AEC granted permit for Vermont Yankee power plant & issued a rule about uranium fuel that did not require qualitative evaluation of the environmental hazards posed by the uranium fuel cycle (only looked at cost benefits)
• NRDC appealed the adoption of the rule & the D.C. Circuit Court remanded the rule to the agency, finding that the procedures during the hearings were inadequate.

Vermont Yankee Rule

Generally speaking, 5 U.S.C. § 553 establishes the maximum procedural requirements that Congress was willing to have the courts impose upon federal agencies in conducting rulemaking proceedings, and while agencies are free to grant additional procedural rights in the exercise of their discretion, reviewing courts are generally not free to impose them if the agencies have not chosen to grant them.

3 Rationales:

• Inconsistency and Uncertainty: If courts can call out agency procedures insufficient, then agencies will not know what is required.
• “Monday morning quarterbacking”: Congress did not intend for courts to make these choices for agencies post-hoc.
• More Procedure Isn’t Better: More procedures do not necessarily lead to better agency records.

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Also, changing rulemaking procedure is in Congress’s purview and not the courts’.

Holding: Reverse & Remand

Massachusetts v. EPA

Political History of the Case

• October 1999, Groups file rulemaking petition asking EPA to regulate greenhouse gas emissions from motor vehicles (Clinton EPA)
• January 2000, EPA requests public comment on petition & asked for NRC report (Clinton EPA)
• 2001, NRC report published, concluding that greenhouse gases are causing temps to rise (barely bush EPA)
• September 2003, Petition denied (Bush EPA)

Court references

FDA v. Brown & Williamson Tobacco Corp.

The “major questions doctrine” originated in FDA v. Brown & Williamson Tobacco Corp. This doctrine says that an agency must have clear congressional authorization for the authority it claims.

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Courts must determine whether Congress meant to give the agency the power to make decisions of vast economic and political significance. “Agencies have only those powers given to them by Congress and it must be presumed that major policy decisions are left with Congress, not agencies.”

Holding?

“As we have repeated time and again, an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities.”

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Buuuuutttt

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The Clean Air Act requires the EPA to regulate emissions of pollutants that it makes findings of endangerment for. “[O]nce the EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statue.”

Dissent

Massachusetts v. EPA previews the

Major Questions Doctrine