Last week, the D.C. Circuit heard oral argument on a highly unusual attempt to short-circuit EPA’s rulemaking process for greenhouse gas regulation of existing power plants. Despite statutory and constitutional hurdles to premature litigation, the petitioners—the coal-fired industry and coal-producing states—argued that the importance of the proposed rule justifies court intervention.
The rule’s importance is precisely why it is critical that the agency complete the administrative process.
That industry groups will file lawsuits over EPA’s greenhouse gas initiatives is unremarkable. After all, litigation is to be expected: frequently, both the regulated community and public interest groups challenge major environmental rules. Nor is it unusual that interested parties may attempt to hijack a regulatory policy before a rule is finalized. Scholars have documented (for example, here, here, and here) the many contacts between agencies and regulated industries that occur at various stages of a rules’ development. What is more, contacts—from any interested party—are perfectly legal provided the agency discloses anything it relies on in support of the rule. Congressional pressure and Presidential direction may also be brought to bear on agencies during their decisionmaking processes.
But one institution stands apart: the courts. That the third branch will not interfere with agencies’ unfinished business is one of the strongest principles of both administrative and constitutional law. First, the whole point of proposing a rule and taking comments is to enhance the administrative law values of participation, deliberation, and transparency (for more on EPA’s efforts, see here). In short, agencies stand to learn something from commenters. They often change their minds following comment periods, issuing final rules that are different from those originally proposed or withdrawing a proposed rule altogether (as has happened with a prior proposed rule targeting GHGs). It makes no sense to engage the machinery of the courts before agencies have had the opportunity to learn and deliberate in connection with a comment period. If anything, these procedures are all the more important for important rules.
Nor does the Constitution endorse such inter-branch interference. Numerous statutory, common law, and constitutional rules protect these concerns. Hence, the Clean Air Act’s requirement that only final rules can be challenged; the Administrative Procedure Act’s similar provision; the ripeness doctrine that considers whether a rule is fit for review; and the standing doctrine’s requirement that injuries be actual and concrete.
Fortunately, the tenor of the questions at oral argument suggested that at least two members of the panel have serious concerns about interfering in a non-final rule. The Petitioners’ challenge can wait. Judicial review now would set a dangerous precedent, threatening one of the most democratic processes agencies undertake. Let the agency finish its work; after that, the courts will have something to review.