State of Administrative Law Affairs – Part 3

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Urvi Shukla
September 30, 2024

The Ohio v Environmental Protection Agency (EPA) saga teaches a crucial lesson in policy implementation: procedure matters. In this case, the Supreme Court majority and dissenting opinions examine the EPA’s rulemaking procedure to determine whether the agency displayed enough transparency to implement a final rule limiting cross-state pollution. The defining distinction that drives Justice Amy Coney Barrett to deliver a dissent against her ideological peers surrounds the judicial procedure through which the case landed in the Supreme Court. As such, this case serves as a reminder of the axiom: procedure is policy. Public Administration (PA) scholars should pay attention to administrative law jurisprudence that governs implementation procedures and carries practical implications, like excess pollution.

Congress passed the Clean Air Act (CAA), empowering the EPA to set national air quality standards and regulate pollution that crosses state lines. Under the “Good Neighbor” provision, the EPA required each “upwind” state to submit a state implementation plan (SIP) to limit the pollution crossing into “downwind” states. Many states failed to meet EPA standards because they changed none of their current practices in their SIPs. During the SIP approval process, the agency passed a rule that unified these states under a federal implementation plan (FIP). This led to litigation from states and various industries and quickly emerged on the Supreme Court’s emergency docket to stop the FIP’s implementation. The 5-4 majority cited the EPA’s procedural mistake as the reason to let some states have excess pollution. The mistakes were (1) not adequately addressing concerns in public comments and (1a) not providing how the FIP’s calculations still hold to reduce emissions in a situation where states did not participate.

This quintessential administrative law case outlines technical and procedural expertise dynamics in agency rulemaking. The EPA would use scientific experts to calculate emissions levels across states and industries to inform the rule. Agencies employ administrative law expertise to navigate the patchwork quilt of laws, internal regulations and federal court decisions that dictate agency-specific actions to ensure the rule can arguably pass legal muster. The Administrative Procedure Act of 1946 requires that before the agency promulgates a rule, it notifies and gives the public a chance to address the action in public comments. Subsequent court cases, legislation and regulations inform each agency’s procedures and standards of judicial review.

Through this decision, the majority instructed EPA to ensure that public comments were interpreted with a broader reading. The court also advances scrutiny about the EPA’s calculations: if most states do not comply with the FIP, how can the policy outcome be the same when the calculations were based on all states complying? In considering the calculations of a counterfactual, the majority signals its incredulity of agency practices. It refines the standards of of agency transparency in the rationale behind each procedure and its corresponding impact. In granting the emergency pre-trial stay to implement the FIP, the majority hypothesizes that the EPA would have lost on merits through the appropriate judicial procedures that will begin at the DC Circuit Court.

Justice Barrett departed from her ideological peers to author the dissent and sharply criticized the majority’s “underdeveloped theory” that the states’ litigation would win on merits. Her examination of the administrative record produced by the EPA (1a) sufficiently explained its calculations and that the emission limits were “independent” of the number of states participating in the FIP. Moreover, Justice Barrett highlights that (1) the majority overlooks the CAA’s requirement of “reasonable specificity” in the public comments for judicial review to be triggered. As such, judicial procedures indicate that the EPA could still win in the lower courts and eventually implement the FIP. In the meantime, however, Justice Barrett highlights the practical impact of delaying the rule’s effect date: allowing upwind states to continue contributing to their downwind neighbors’ total emissions into their ozone.

PA, Pay Attention!

Procedure matters for PA scholars and practitioners. We must pay attention to the judicial branch’s administrative law jurisprudence because it ensures competency and adherence to the agency’s Constitutional principal’s procedural directions and standards.

PA must examine the institutional interplay between the judiciary and agencies as the ideological imperative to gut the administrative state flourishes in the judicial branch. Court cases often function as precedents upon which judicial doctrine and policy are built. This case cautions regulatory agencies like the EPA to thoroughly examine the public comments and effectively “do more” for this Supreme Court majority.

PA scholars must also consider the differences in understanding and operationalizing agency expertise as the court further refines regulatory procedures for the EPA. Agencies employ scientific expertise to ensure that their actions are rational and evidence-based; they secure the potential for legal muster by navigating the procedural labyrinth of pertinent laws and rules.

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Author: Urvi Shukla is a doctoral student at Rutgers University-Newark School of Public Affairs and Administration. Her research interests include the intersection of Law and Public Administration, focusing on administrative law and adjudication practices at the federal level.  

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