Notice & Comment

D.C. Circuit Review – Reviewed: Like a Good Neighbor

The D.C. Circuit has been good to its Washington neighbors lately, awarding victories to the federal agency/officer in four of the five opinions it issued last week. 

In Midwest Ozone Group v. EPA, EPA’s Cross-State Air Pollution Rule Update was back before the Court following a remand and revision. Professor Nielson profiled the remand in 2019. The rule issues under the Clean Air Act’s “Good Neighbor Provision,” which requires upwind states to prevent air pollutant emissions from contributing significantly to downwind states’ “nonattainment” of the National Ambient Air Quality Standards.  Midwest Ozone Group, an association of companies, trade organizations, and other entities, challenged as flawed several aspects of EPA’s technical methodology for updating and revising the rule. Reviewing the methodology narrowly, the panel (Judge Childs, joined by Judges Wilkins and Rao) concluded that EPA had engaged in reasoned decision-making and denied the Group’s petition. You know what they say: Like a Good Neighbor [Rule]? State Farm is there. 

The Court also found reasoned decision-making in Levine/Schwab Partnership v. FCC. FCC permits to construct radio stations require a broadcaster to build the station within three years, unless the FCC grants an extension. Schwab obtained a permit to build a radio station in Culver City, California, but the landlord of the original site withdrew permission to build. Schwab had requested, and FCC granted, three tolling requests. FCC denied the fourth. Judge Walker (joined by Judges Millett and Wilkins) affirmed. Specifically, the court reasoned that (1) Schwab had not yet secured permission to build at a new site, (2) site loss, rather than COVID-19 or wildfires, was the real reason Schwab could not build, and (3) site loss is not a legitimate basis for tolling under the relevant FCC regulation.

NLRB did not fare as well as EPA and FCC. International Organization of Masters, Mates & Pilots v. NLRB arises from a dispute between a union and the operator of four container ships whose masters and mates the union represents. The legal question here is whether the dispute is within NLRB’s jurisdiction, which in turn depends on whether second and third mates are supervisors or employees. If they are supervisors, then their bargaining unit (formed with masters and first mates, both supervisors) consists entirely of supervisors and is beyond the reach of NLRB. If they are employees, then their bargaining unit is “mixed,” and the operator’s voluntary recognition of the unit brings the relationship within NLRB’s purview. The ALJ took evidence and found that the second and third mates were employees. NLRB nevertheless ruled that it lacked jurisdiction on the ground that, whatever the status of the second and third mates “in fact,” the operator believed they were supervisors and that was the relevant fact for determining whether the operator had voluntarily recognized a “mixed unit.” Judge Edwards (joined by Judges Henderson and Pillard) found NLRB’s decision to be arbitrary and capricious on the ground that it lacked support in the record, conflicted with established law, and created a new rule without reasoned justification.  

In addition to these three more typical requests to review agency action, the Court considered two petitions for writs of mandamus.  

The first, in Illinois v. Ferriero, sought to compel the Archivist of the United States to certify and publish the Equal Rights Amendment as part of the U.S. Constitution. Congress submitted the ERA to States for ratification in 1972. Since that time, the requisite thirty-eight states have approved the amendment, but two developments have foiled ratification. First, the submitting Congress imposed a deadline for ratification, which the final ratifiers missed by several decades. Second, several states rescinded their ratifications before the purported thirty-eighth state ratified. This case is one of two dueling actions seeking to compel the Archivist to act or not act on the putative thirty-eighth ratification. The district court dismissed for lack of jurisdiction, holding that the petitioning States lacked standing (because the Archivist’s certification and publication of the ERA would lack legal effect) and that petitioners had not shown a “clear and indisputable right to relief” (a jurisdictional requirement for mandamus). Judge Wilkins (joined by Judges Rao and Childs) affirmed on the latter ground, holding that the States had not clearly and indisputably established that the ratification deadline Congress set was invalid. 

Finally, in In re Flyers Rights Education Fund, an air traveler advocacy organization petitioned to compel FAA to commence rulemaking to establish minimum seat size and spacing standards for airlines. But Judge Walker (joined by Judges Rogers and Tatel) interpreted the relevant statute to require FAA to set such standards only if they are “necessary for the safety of passengers.” FAA has studied the issue and found no connection between small, close seats and the safety and health concerns cited by Flyers Rights. Noting this record, the Court concluded that the organization had failed to show a “clear and indisputable right to relief.” Here’s hoping you have good neighbors on your next flight because they will be as close as ever. 

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