Legal minutiae often drives the greatest of issues and last week proves that point with a petition for rehearing en banc over jurisdiction and the denial of a stay. Logistically, compliance with detailed court orders can prove a challenge for agencies, ex
hibited by action on two judicially-required rules. In addition, even the nondiscretionary rulemaking and codifying existing interpretation consistent with all-but-settled facts can contain challenges.
Clean Water Rule Complicated: A number of industry petitioners added another complication to judicial review of the Environmental Protection Agency (EPA) and Army Corps of Engineers’ Clean Water Act: Definition of “Waters of the United States” (WOTUS) by seeking en banc review of the badly splintered panel decision that the United States Court of Appeals for the Sixth Circuit holds jurisdiction to hear the consolidated petitions. To summarize, the panel decided that the Clean Water Act (CWA) vested jurisdiction to review the rule in the court of appeals, not the district courts. The district court cases remain in various states of legal limbo, many dismissed without prejudice, but with one district court holding that it possesses jurisdiction and staying the rule as to the parties before it. Merits briefing continues in the Sixth Circuit while the rule is subject to a nationwide stay.
► A petition for en banc review of a deeply divided panel at this early but decisive stage of litigation is not particularly surprising and gives significant pause to the likelihood of concluding any aspect of the validity of the rule in the near future. Jurisdictional issues often merit an early review and no matter the outcome of the en banc petition, some party is likely to file a petition for certiorari in the United States Supreme Court (SCOTUS). Any decision adverse to the court of appeals jurisdiction could throw the entire litigation into chaos.
MATS Stay Rejected. Acting alone as Circuit Justice, without referring the issue to his colleagues, the Chief Justice rejected the application for a stay of the EPA’s Mercury and Toxic Substances (MATS) rule for electric generating units pending completion of judicial review. SCOTUS remanded Michigan v. EPA last June, holding that EPA erred in not considering costs in its initial statutory determination of whether to proceed with regulations under the Clean Air Act (CAA). In turn, the United States Court of Appeals for the District of Columbia Circuit remanded to EPA for the development of the cost / benefit analysis, which EPA has said would be completed by April 15, 2016.
► Not to belabor the point – ok, let’s belabor the point – the cost analysis that was supposed to be a predicate to determining whether to regulation has become nothing more than a post hoc rationalization. EPA has already stated that it is likely to reach the same result. Nonetheless, the Chief’s denial of the application for a stay is as unsurprising as SCOTUS’s stay of the Clean Power Plan was surprising.
Airport Screening Legalized: The Transportation Security Administration (TSA) finally promulgated a final rule to amend the civil aviation security regulations to specify that TSA may use advanced imaging technology (AIT) to screen individuals at security screening checkpoints. The final rule seeks to comply with a decision of the D.C. Circuit decision in EPIC v. DHS, which found that TSA violated the Administrative Procedure Act (APA) by introducing AIT as a primary screening technique without advance notice and an opportunity for public comment. TSA does not acknowledge that the court of appeals was required to issue a writ of mandamus to compel TSA to complete the rulemaking.
► The Department of Justice (DOJ) advised the court that the Department of Homeland Security (DHS) proposed to promulgate the final rule not later than March 3, 2016, and did so in the nick of time. TSA made a number of changes in light of the public comments on the 2013 proposed rule, and many of these changes merely adopted statutory definitions – regurgitating statutory language. Whether TSA has complied with the previous court orders is likely to be the subject of further litigation.
OPT STEM Revision to Avoid Vacatur: The Office of Management and Budget (OMB) completed review of the Department of Homeland Security (DHS) draft Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students final rule, and publication may be soon at hand. Recall that the United States District Court for the District of Columbia vacated DHS’s 2008 interim final rule (IFR) and stayed its hand, with some extension, until May 10th. The 2008 rule extended the period for optional practical training (OPT) for some science, technology, engineering, and mathematics (STEM) foreign students. DHS wanted more time not only to make a final rule effective but an additional 60 days to retrain its staff.
► The timing looks like it may be a little tight, but DHS is likely to absorb any operational shortfall in that schedule because the district court is likely would look unkindly upon further extension of its stay of vacatur. With OMB’s review completed, DHS can publish the rule, set the effective date for the end of the stay, and allow any potential further litigation challenging its new rule potentially to run its initial course over the next two months. That scenario, however, is too optimistic.
COOL Handful of Nothin’: The Department of Agriculture (DOA) formally removed from the Code of Federal Regulations the Country of Origin Labeling (COOL) language pertaining to muscle cut and ground beef and pork last Wednesday. The final rule implemented the repeal of statutory authority and averting retaliatory tariffs from Canada and Mexico, and as oft colored these posts, litigants contested hotly the beef and pork COOL rule. Although not well written, DOA almost correctly notes that “Providing notice and seeking comment are impractical, unnecessary, and contrary to public interest because [DOA] has no discretion in implementing the statutory provisions that remove beef and pork from the COOL regulations.”
► DOA is correct that Congress’s repeal leaves them no discretion, but Congress repealed the underlying statutory provision, not the regulation, and that repeal makes advance notice and an opportunity for public comment “unnecessary,” not impracticable or contrary to the public interest. After all the regulation, litigation, and international intrigue, we are left with “a handful of nothin’.”
De-Vaporizing Airplanes: The Department of Transportation (DOT) promulgated a final rule extending the smoking ban on commercial aircraft to include the use of electronic cigarettes (“e-cigarettes”) and similar “vaping” products. DOT reiterated that it has long interpreted existing regulation to prohibit e-cigarette use, but is codifying this interpretation – and the policies of a vast majority of airlines – into substantive regulations. DOT notes, again, that the aerosolization of nicotine and other compounds affects more than the user, it also generates “second-hand” vapors.
► The rule was expected and does reflect changes based on the public comments. The point here is simply that regulations must keep up with the emerging realities.
The post Monday Morning Regulatory Review – 3/7/16: Clean Water Rule Complicated; MATS Stay Rejected; Airport Screening Legalized; OPT STEM Revision to Avoid Vacatur; COOL Handful of Nothin’ & De-Vaporizing Airplanes appeared first on Federal Regulations Advisor.