Notice & Comment

D.C. Circuit Review – Reviewed: An Early Fall

Today, Punxsutawney Phil predicted an early spring. Had he looked at the D.C. Circuit Opinions page, he might well have concluded that it was early fall—a time when the term is only beginning, and the flow of opinions slows to a trickle. Last week saw only one opinion* released, and this week promises to be similarly slow. (Unless the anticipated immunity opinion issues in the final hours of the week.)

In honor of today’s holiday, and in keeping with this blog’s administrative focus, I decided to take a look at the D.C. Circuit’s National Oceanic and Atmospheric Administration jurisprudence.  If you’re scratching your head at my choice of topic, NOAA is the federal agency that forecasts weather . . .  like the groundhog! Hopefully, its methods are less arbitrary and capricious than those of its rodent counterpart.

What I had not previously known is that the agency’s jurisdiction is actually a good deal broader than the weather. For example, it also houses the National Marine Fisheries Service, whose fee rule may bring an end to Chevron deference in Loper Bright v. Raimondo. The D.C. Circuit’s opinion deferring to the rule under Chevron is here. (By the way, for a fascinating look at user fees across the federal government, take a look at this report by Professor Erika Lietzan.)

NOAA’s regulatory activities are quite varied, reaching everything from oil spills to navigation to orca displays. (This blog’s analysis of the last-linked opinion is here.)  It issues nautical charts. It consults on environmental impact statements. It conducts extensive research projects.

D.C. Circuit decisions involving NOAA largely concern its marine regulations and consultation on environmental impact statements. (Although “Oceanic” is in its name, its authority under NEPA and the Endangered Species Act follows the path of anadromous species into inland waterways, meaning that it consults on a range of federal projects.)  Indeed, it seems never to have been taken to task (at least before the D.C. Circuit) for its weather forecasts. Perhaps that is because the discipline that gave birth to chaos theory supplies no manageable standards for judicial review.

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.

*Kaboni Savage v. DOJ affirmed the nonprejudicial dismissal of a prison grievance suit on the ground that the prisoner had not exhausted administrative remedies, as required by the Prison Litigation Reform Act.

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