The APA as an Environmental Law

By Stansberry, Ross A. | Environmental Law, Summer 2019 | Go to article overview

The APA as an Environmental Law


Stansberry, Ross A., Environmental Law


  I. INTRODUCTION                                                 806  II. APA REQUIREMENTS FOR POLICY REVERSALS                        809      A. Inadequate Explanation: State Farm                        810      B. Adequate Explanation: Fox                                 814 III.  PROVIDING A REASONED EXPLANATION IN ENVIRONMENTAL POLICY    817       REVERSALS      A. The Bush Administration: The Tongass Exemption            818      B. Trump Administration                                      822         1. Arbitrary and Capricious Delay or Suspension           822            a. The Chemical Disaster Rule                          822            b. The Methane Waste Prevention Rule                   825         2. Arbitrary and Capricious Reversal: The Keystone XL     828            Pipeline  IV. STRATEGIES FOR RESILIENT DECISION MAKING AND CHALLENGING     831      REVERSALS      A. Making Enduring Decisions                                 831      B. Reversing Course                                          833      C. Challenging Policy Reversals                              835   V. CONCLUSION                                                   836 

I. INTRODUCTION

In a familiar pendulum swing between changing administrations, (1) the Trump Administration took office promising to roll back environmental regulatory standards promulgated under the Obama Administration. (2) The Trump Administration has sought to fulfill this promise by setting its sights on more than eighty environmental policies and regulations for rollback. (3) The judicial branch has enjoined some of these regulatory rollbacks and permit decision reversals because of the Trump Administration's failure to comply with the Administrative Procedure Act (4) (APA). Courts have found the Administration violated the APA's prohibition on arbitrary and capricious agency action when suspending the 2017 Chemical Disaster Rule, (5) suspending the 2016 Methane Waste Prevention Rule, (6) and reversing course in the State Department's 2017 decision to approve the Keystone XL Pipeline permit. (7) These judicial hang-ups demonstrate the challenges arbitrary and capricious review under the APA imposes on administrations seeking to suspend or reverse administrative decisions of their predecessors--particularly those administrations pursuing an accelerated deregulatory agenda.

This is not the first time courts have stymied or even stopped portions of an administration's agenda because of its failure to comply with the APA. The Bush Administration attempted a similarly ambitious deregulatory agenda when it took office after the Clinton Administration. (8) Like the present deregulatory efforts, the Bush Administration faced trouble when it sought to delay or roll back the previous Administration's environmental regulations, in part because the Bush Administration failed to follow the APA's procedural requirements or meet the substantive requirements of the arbitrary and capricious standard. (9) Given the current state of political polarization on environmental issues (10) and the frequent occurrence of "midnight regulation," (11) administrations will continue to face problem of how to effectively undo the work of their predecessors.

Generally, deregulatory administrations have run into two kinds of problems of APA non-compliance: either 1) the suspensions of a previous administration's rules violated APA requirement to provide adequate notice and comment, (12) or 2) when reversing the rule of a previous administration, the agency under the new administration failed to provide a "reasoned analysis" to justify its reversal. (13) This Comment focuses on the reasoned analysis requirement, although the notice and comment requirement has also proven to be troublesome for the Trump Administration. (14)

The Supreme Court elaborated on the "reasoned analysis" requirement in the 1983 case of Motor Vehicle Manufacturer's Association of the U.S., Inc. …

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