Notice & Comment

D.C. Circuit Review – Reviewed: Meanwhile in the D.C. Circuit

While some other things were happening last week in administrative law, the D.C. Circuit decided four cases of note.

The first one involved a (Chevron-free) disagreement over the meaning of the Mining Law of 1872. In Earthworks v. Department of the Interior, a divided panel affirmed the entry of summary judgment for the Interior Department in a long-running rule challenge brought by conservation groups. The rule addressed the size of mill sites on federal land. Mill sites are non-mineral land adjacent to mining claims that may also be staked. By statute, “no location . . . of such nonadjacent land shall exceed five acres.” In 1997, the agency adopted an interpretation permitting only one mill site per mining claim. In 1999, the agency proposed a rule to codify that interpretation. But Congress passed an appropriations rider prohibiting the agency from doing so in 1999 or 2000. And in 2003, the agency changed its interpretation and promulgated a final rule permitting an unlimited number of mill sites (each no more than five acres).

The majority (by Judge Ginsburg) held that the statute imposed no limit on the number of mill sites. Unlike the district court, the majority concluded that the text was unambiguous. In dissent, Judge Pan argued that the reference to “such” nonadjacent land implied a limit of one mill site per mining claim. The majority disagreed, reasoning that the statute imposes a size limit on a “location . . . of such nonadjacent land,” not “such adjacent land” as a whole. In a preview of how deference disputes may play out under Loper Bright, Judge Pan cited two nineteenth-century administrative decisions, but the majority dismissed them as “not consistent with subsequent practice.”

The majority further rejected the conservation groups’ challenges under the National Environmental Policy Act and the Administrative Procedure Act. With respect to the latter, it concluded that the agency was not required to issue a new notice and request for comment in 2003, because adopting no limit was a “logical outgrowth” of the proposal to adopt a limit of one.

Second, in Goodluck v. Biden, the D.C. Circuit (by Judge Katsas) held that the district court lacked authority to order the State Department to continue processing certain applications for diversity visas. The plaintiffs, who were selectees in the 2020 and 2021 diversity-visa lotteries, brought non-constitutional challenges to several government policies that limited the processing of their applications during the COVID-19 pandemic. The district court ordered the Department to continue processing and issuing visas past the end of the respective fiscal years. The D.C. Circuit reversed, explaining that the Immigration and Nationality Act makes selectees “eligible to receive such visa only through the end of the specific fiscal year for which they were selected.” As such, the district court lacked equitable power to order the continued processing of those applications. The court also noted the need for “restraint” in the foreign-policy context, even when the government does not invoke the doctrine of consular non-reviewability.

Third, in Electric Energy, Inc. v. EPA, the D.C. Circuit held that it lacked jurisdiction to review several coal-fired power plants’ challenges to EPA actions under the Resource Conservation and Recovery Act (RCRA). In 2015, EPA promulgated a rule governing the disposal of coal-combustion residuals. As later amended, the rule set a deadline for closing certain disposal sites, but it permitted extensions until October 15, 2024. EPA denied one petitioner’s application for an extension on the ground that it had not satisfied the regulatory preconditions. EPA also issued a press release and sent letters to a state regulator and four power-station operators that either (in EPA’s view) elaborated on the rule or (in petitioners’ view) announced new requirements.

In an opinion by Judge Pillard, the court first held that it lacked jurisdiction to review the press release and letters because they did not constitute “promulgating a[] regulation, or requirement” within the meaning of RCRA’s review provision. Jurisdiction under that provision is limited to legally binding rules (known as legislative rules). The court concluded that the documents merely explained and applied the final rule and that EPA always treated the final rule as the source of authority. The court also rejected petitioners’ argument that the documents would be reviewable if they announced an interpretive rule (a rule interpreting the legislative rule), because a “regulation” or “requirement” must have the force and effect of law for purposes of the review provision.

The court next concluded that it lacked jurisdiction to review the denial of the extension. The court noted that the denial order was backward-looking and specific to that petitioner, even though it announced principles that could (and did) inform future decisions. For its part, EPA argued that the denial was reviewable to the extent it tolled the compliance date while the application was pending. The panel disagreed, reasoning that the rule always required the petitioner to stop accepting coal-combustion residuals by the deadline, even if it was tolled.

Finally, in Tanner-Brown v. Haaland, the court held that the descendant of a minor Cherokee Freedman had standing to seek an accounting from the Interior Secretary with respect to land allegedly held in trust. But the court further held that the descendant’s organizational co-plaintiff lacked associational standing for two reasons: (1) the individualized nature of the claim required participation by individual members, and (2) the organization did not represent anyone other than the individual plaintiff.

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