Academic journal article The Yale Law Journal

Administrative Severability Clauses

Academic journal article The Yale Law Journal

Administrative Severability Clauses

Article excerpt

ARTICLE CONTENTS  INTRODUCTION  I.   SEVERABILITY IN ADMINISTRATIVE LAW      A. The Severability Decision         1. The Severability of Statutes         2. The Severability of Administrative Rules      B. The Who-Decides Question         1. Agency Intent         2. Workability of the Remainder            a. Expertise            b. Accountability            c. Rule of Law            d. Efficiency  II.  THE STRANGE DEARTH OF ADMINISTRATIVE SEVERABILITY CLAUSES      A. De Novo Review by the Courts      B. Neglect in the Agencies  III. DEFERENCE TO ADMINISTRATIVE SEVERABILITY CLAUSES      A. Disassociating Statutory and Administrative Severability         Clauses         1. Attention Paid to Severability Clauses         2. Time Pressure         3. Centralization      B. A Chevron-Style Framework for Severability Clauses         1. Step One: Address Legal Defects            a. Identifying Defects            b. Remedying Defects         2. Step Two: Defer to the Agency         3. Step Zero: The Limits of the Deference Framework  CONCLUSION  APPENDIX: ADMINISTRATIVE SEVERABILITY CLAUSES BY AGENCY 


"Judicial review controls administrative action in the same way that tornadoes control the rice crop in Arkansas: they appear unpredictably, wreak havoc, and then depart. "

--Jerry Mashaw (1)

This Article explores a topic overlooked in legal scholarship: severability clauses in administrative regulations. "Administrative severability clauses," as we call them, are provisions of administrative rules that clarify whether an agency intends for a rule to remain in effect if a court were to invalidate a portion of the rule. (2) A recent example, to which we return at several points in the Article, helps to illustrate the function and potential importance of these clauses.

The Environmental Protection Agency (EPA) recently published a proposed rule, commonly referred to as the "Clean Power Plan." (3) Political analysts have dubbed it the "centerpiece" of the Obama Administration's strategy on climate change. (4) The Clean Power Plan aspires to reduce greenhouse gas emissions by thirty percent below 2005 levels before 2030 by requiring states to meet certain carbon pollution emissions goals. (5) To set those goals, the EPA has identified four measures, which the proposed rule terms "building blocks" and which the agency has determined together make up the "best system of emission reduction." (6) The building blocks are: (x) making existing coal plants more efficient; (2) using existing gas plants more effectively; (3) increasing reliance on renewable and nuclear energy sources; and (4) improving end-use energy efficiency. (7) Like many environmental regulations, the Clean Power Plan is an example of cooperative federalism. While states are free to formulate their own plans for reducing greenhouse gas emissions, they must implement plans that will at least match the emissions reductions that the EPA has determined could be achieved by implementing the four building blocks.

Since the EPA's emissions goals are derived from the building blocks, regulated entities opposed to the Clean Power Plan--and there are many--are likely to challenge the building blocks in court. The agency may therefore be concerned that a court will vacate the entire Clean Power Plan if a court finds that just one of the building blocks is invalid. Likely in order to manage this risk, the EPA inserted a severability clause into the proposed rule's text. The clause provides that if a court invalidates one or more of the building blocks, the remainder of the rule should stay in effect, and the states' adjusted emissions targets should be based on the remainder of the building blocks. (8)

The Clean Power Plan's severability clause will become relevant in litigation if a discontent stakeholder challenges the rule and the reviewing court sets one or more of the building blocks aside. The court will then have to make what we call the "severability decision"; it will have to choose between invalidating only the challenged provision, invalidating the challenged provision and several other provisions, or invalidating the entire rule. …

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