Aside from the United States Supreme Court (SCOTUS)’s end of Term fireworks (covered previously and later today), a few highlights in regulatory practice from the last week included a stay of the Department of the Interior (DOI)’s hydraulic fracturing rule for federal and Indian lands and summary judgment in favor of the Department of Education (ED) regarding part of its efforts to reign in for-profit colleges. The Environmental Protection Agency (EPA) and Armey Corps of Engineers publication of the definition of waters of the United States sets the effective and judicial review dates for that contentious final rule. The Administrative Conference of the United States (ACUS) also published its latest recommendation for agency improvement.
Fracking Rule Stayed: The United States District Court for the District of Wyoming stayed the effective date of the DOI Bureau of Land Management, Oil and Gas: Hydraulic Fracturing on Federal and Indian Lands final rule on June 23, 2015, in State of Wyoming v. Department of the Interior. The Bureau of Land Management (BLM) – some 90 days after publishing the final rule and nearly as long after suit was joined – has not submitted the administrative record upon which the court reviews the final rule under the Administrative Procedure Act (APA). In short, the district court found that it simply had insufficient information on which to decide the merits of the motions for a preliminary injunction, most likely whether the plaintiffs were likely to succeed on the merits. The court ordered BLM to file the administrative record by July 22, 2015, ordered the parties to file record citations for their arguments within seven days thereafter, and stayed the effective date of the rule “pending BLM’s lodging of the Administrative Record and the Court’s ruling on the motions for preliminary injunction.”
► The complaints and arguments made in the various motions for preliminary injunctions are critical to understanding why the court issued this specific order. While the State plaintiffs argued issues of statutory authority, the industry plaintiffs argued procedural and logical deficiencies in the final rule – extensively citing public comments that are presumptively part of the yet-to-be-filed administrative record. The State plaintiffs’ arguments are largely statute based and the administrative record may provide little additional information, but the industry plaintiffs’ arguments greatly depend on the administrative record. Without the administrative record, or at least a certified index from which the parties could agree on a “joint appendix” of documents that are relevant to the court’s review, the court was unable to assess the substance of the claims and their possible role in irreparable harm and likelihood of success on the merits elements of a preliminary injunction analysis. Preventing the rule from becoming effective retains the parties equities in status quo.
Agencies know well that they are responsible for compiling the administrative record of all documents considered directly or indirectly in deciding on their final rules, with very little discretion other than whether to segregate privileged documents, and submitting that record for judicial review. Failure to timely compile and submit the administrative record should not be difficult if the agency has pre-managed its compilation, particularly when everyone expected litigation. DOI has asserted historically and publicly that it has detailed policies for administrative record compilation, yet the Department of Justice (DOJ) asserted that the voluminous record required more time to compile. No substantive issue presents here, just BLM’s failure to manage in the face of long-anticipated litigation.
DOI’s failure to produce the record naturally results (and should result) in a stay of the final rule effective date.
Gainful Employment Passing Grade: In the latest installment of litigation over the attempts to regulate for-profit higher education, the United States District Court for the District of Columbia granted ED’s motion for summary judgment in Association of Private Sector Colleges and Universities v. Duncan. One of several lines of regulation and litigation, the district court previously vacated most of the original gainful employment rule because ED failed to provide a reasonable explanation of its debt-repayment metrics on arbitrary and capricious review. ED published a new proposed rule for public comment and finalized that rule last October. Plaintiffs sued to vacate ED’s response to the prior litigation, but this time the district court rejected claims that ED violated its statutory authority, turned down a baker’s dozen of arbitrary and capricious challenges to the metrics in the final rule, as well as challenges to the disclosure and reporting requirements (some of which were not ripe).
► An appeal is likely in this death knell litigation, although the number of issues is likely to substantially pared. Just to be clear, this is not the proverbial “second bite of the apple.” The oscillation between agency and court unfortunately is too common when an agency fails or declines to provide a sufficient explanation. Having done its homework, ED’s rule now survives judicial review, at least with a passing grade, for now.
Waters of the United States: EPA and the Engineers today published the final Clean Water Rule: Definition of “Waters of the United States.” The agencies released drafts of the final rule last month, and today’s formal publication sets of the next stage of the regulatory process: litigation over the efficacy of the rule. The rule will become effective on August 28, 2015, and technically issued for purposes of judicial review at 1 p.m. EDT on July 13, 2015.
► Publication usually takes only a few days after signature, but some rules may pose difficulties. The agencies have not, and likely will not, inform the public on why this rule was delayed. Nonetheless, as noted a number of times in this blog, early release of a drafter final rule allows the public additional time to digest the agency’s decision prior to the start of the minimum 30-day, on in this case 60-day, delayed effective date.
ACUS Recommendation: ACUS reported the adoption of one recommendation at its Sixty-second Plenary Session: Promoting Accuracy and Transparency in the Unified Agenda. The recommendation focuses in part on the statutory requirements of the Regulatory Flexibility Act (RFA) and in part on the discretionary management of public release of information by agencies. Worth the read, with the caveat that agencies do not have control of intervening events that often make planning documents obsolete.
The post Monday Morning Regulatory Review – 06/29/15: Fracking Rule Stayed; Gainful Employment Passing Grade; & ACUS Recommendation appeared first on Federal Regulations Advisor.