This week, litigation updates: The United States Court of Appeals for the District of Columbia Circuit last week cleared out a myriad of challenges to Environmental Protection Agency (EPA) regulations and decisions based on regulations – all in favor of the EPA. The National Labor Relations Board (NLRB) also succeeded in defending their second union representation election rule. A challenge, however, attacked the Department of Homeland Security (DHS) and Department of Labor (DOL) recent responses to the vacatur of past H-2B non-immigrant labor regulations.
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A Good Week for EPA: The Administrative Procedure Act (APA) divides the administrative state into regulations and adjudications, but regulations and adjudications are not entirely immiscible and may commingle and conflue. The D.C. Circuit provided a little of each last week for the EPA.
Most impressive of the D.C. Circuit decisions denying petitions for review was the lengthy and detailed deconstruction of State and local government, environmental advocates, and industry claims that EPA’s 2008 Ozone standard (adopted in 2012) violated a host of constitutional, programmatic Clean Air Act (CAA) and procedural APA statutes consolidated into Mississippi Commission on Environmental Quality v. EPA. The unanimous panel (per curiam) decision notes that
Virtually every petitioner argues that, for one reason or another, the EPA acted arbitrarily and capriciously in making its final [National Ambient Air Quality Standards (NAAQS)] designations. But because the EPA complied with the Constitution, reasonably interpreted the Act’s critical terms and wholly satisfied – indeed, in most instances, surpassed – its obligation to engage in reasoned decision-making, we deny the consolidated petitions for review in their entirety.
► The decision might reflect the “satisfy no one” result in determining that an agency has not acted in an arbitrary and capricious manner or abused its discretion.
Additionally, an overlapping panel of the D.C. Circuit affirmed an EPA decision not to renew a fuel refinery exemption to the Renewable Fuels Standard (RFS) ethanol blending mandate (on the “adjudication” side, rather than a rulemaking side of the APA) in Hermes Consolidated, LLC v. EPA.
► While Hermes is not a critical regulatory case, affirming EPA’s denial of the petition for exemption bolsters the ongoing development of the RFS program (and its many factual hurdles) expressed in the recent EPA proposed rule to set volume standards for past, current, and future years.
And finally, another overlapping panel rejected challenges to EPA’s final rule classifying carbon dioxide injected into underground wells (Class VI) as part of the carbon sequestration process as “solid waste” under the Resource Conservation and Recovery Act (RCRA). In 2010, EPA promulgated a Safe Drinking Water Act rule creating Class VI wells and prohibiting the injection of hazardous RCRA solid waste into such wells; it is not clear that any such wells exist today. A 2014 rule set conditions for excepting carbon sequester from RCRA requirements, but Carbon Sequestration Council v. EPA reaches no further than standing because no petitioner showed that it actually use a Class VI well to sequester carbon.
The record is clear that neither Occidental nor Southern operates or plans to operate Class VI wells and neither is regulated in any way by the narrow rule at issue in this case. Since neither can show any injury attributable to EPA’s disputed rule, they lack the standing necessary to satisfy the requirements of Article III. Carbon Sequestration Council lacks standing [to represent its members] because Southern lacks standing. Likewise, American Petroleum lacks standing [ditto] because Occidental lacks standing.
► RFS and carbon sequestration have a common thread: practicality. While production reality has consistently limited RFS goals, whether the existence of any Class VI well that could be used for carbon sequestration raises the question of whether anyone could have standing to challenge the RCRA rule within the RCRA rule petition for review time limits.
NLRB Case Representation Challenges: The United States District Court for the Western District of Texas granted summary judgment to the NLRB in one of the challenges to the second Representation – Case Procedures final rule in Associated Builders and Contractors of Texas v. NLRB. The court found that plaintiffs had not established that the NLRB violated the APA because the rule:
- exceeded the NLRB’s statutory authority by impermissibly restricting employers’ ability to prepare for, present evidence relating to, and fairly litigate issues of, unit appropriateness and voter eligibility in petitioned-for bargaining units;
- violated the National Labor Relations Act (NLRA) by failing to assure to employees the fullest freedom in exercising the rights guaranteed by the NLRA by compelling the invasion of privacy rights of employees by disclosure of personal information prior to any determination that a union’s petition is sufficient to proceed to an election;
- violated the NLRA by interfering with protected speech during union election campaigns; and
- was arbitrary and capricious and an abuse of discretion under the APA.
Challenges to the validity of the union elections rule are pending also in the United States District Court for the District of Columbia in consolidated litigation under the rubric of Chamber of Commerce v. NLRB, which is pending resolution on cross-motions for summary judgment. In a sub-consolidated case, Baker DC LLC v. NLRB, the district court denied a motion for a temporary restraining order against enforcement of the rule against the specific party in the context of a specific pending union election because plaintiff had not shown that it or its employees would suffer irreparable harm if subjected to the final rule requirements.
► In large part, judicial review of the “quickie” or “ambush” election rule now focuses on substantive rights, rather than regulatory procedure. Nonetheless, the scope of authority issues warrant continued scrutiny.
More H-2B Litigation: Unsurprisingly, more litigation in the United States District Court for the Northern District of Florida, Bayou Lawn & Landscape Services v. Johnson (III), challenges the DHS / DOL “joint” rulemakings to recreate the H-2B non-immigrant worker program and set wage floors. The new complaint asserts that:
- DHS / DOL failed to provide advance notice and an opportunity for public comment, and that the agencies’ lacked “good cause” for bypassing that APA requirement in promulgating an interim final rule;
- The 2015 rules are arbitrary and capricious for want of legislative authority for various provisions of the rules or for want of consistency with the Immigration and Nationality Act (INA) and other statutes; and
- DHS / DOL failed to perform the mandatory regulatory flexibility analysis under the Regulatory Flexibility Act (RFA) (because they did not have good cause to promulgate an IFR.
► Bayou Lawn III was predictable and predicted. Bayou Lawn III is a “related case” to the prior H-2B litigation, including Bayou Lawn II, currently on appeal to the United States Court of Appeals for the Eleventh Circuit. The qualitative problem of the agencies’ “good cause” argument remains that the “emergency” of agency program disruption was self-created and court have eviscerated the antiquated precedent supporting the disruption notion (created by others) through modern judicial dictates that have repeatedly made clear that the good cause exceptions are to be narrowly construed and only reluctantly countenanced. The jurisdictional problem is much more complex and the RFA problem is entirely dependent on the first APA result. The saga will continue….
The post Monday Morning Regulatory Review – 6/8/15: A Good Week for EPA; NLRB Case Representation Challenges; & More H-2B Litigation appeared first on Federal Regulations Advisor.