Page 456. Replace Notes 2 and 3 with the following.

2, 3. The court did not definitively decide whether the Clean Water Act’s reference to the “opportunity for a public hearing” meant that the proceeding had to be decided “on the record after opportunity for an agency hearing.” Invoking Chevron, it merely deferred to EPA’s reasonable conclusion that it did not. But Chevron has now been overruled by Loper Bright. That decision explicitly stated that prior cases such as Dominion Energy that applied the Chevron framework are not subject to relitigation, so the holding of this case stands. Suppose, though, another party litigates the issue. Should the First Circuit stand by Dominion Energy, even though its methodology has been rejected by the Supreme Court? Must it? Alternatively, is it bound by Seacoast, since the justification for ignoring it has disappeared? Or should it just start from scratch?

Page 469. Add the following after note 5.

Note on FTC rulemaking authority.

Page 488. Regarding the last paragraph before Nova Scotia.

The grandiosely entitled Providing Accountability Through Transparency Act of 2023, Pub. L. No. 118-8, added a fourth item to the requirements set out in § 553(b): “‘(4) the Internet address of a summary of not more than 100 words in length of the proposed rule, in plain language, that shall be posted on the Internet website under section 206(d) of the E-Government Act of 2002 (44 U.S.C. 3501 note) (commonly known as regulations.gov).’’ The brief Senate Report accompanying the bill explained:

[T]he public’s ability to offer useful feedback through comments is dependent upon the clarity and simplicity of the proposal, especially for parties who may not be experts in the particular subject of the rule. Therefore, this bill offers a uniform and universally accessible standard for agencies to better communicate their intended policies to the public . . . .

S. Rep. No. 118-28, 118th Cong. 1st Sess. (May 16, 2023).

Page 505. Add the following after the carryover paragraph.

As stated in the main text, the obligation to respond to meaningful comments has been developed and enforced by the lower courts, not the Supreme Court. Other than the casual dicta in Mortgage Bankers, the Supreme Court has never acknowledged, let alone applied, this requirement. At least, it had not until Ohio v. EPA, 144 S. Ct. 2040 (2024). The statutory setting is complicated and not worth spelling out in detail. Suffice it to say that, under the Clean Air Act, EPA had imposed a “Federal Implementation Plan”--a set of air pollution control requirements that applied to almost half the states; its authority to do so was premised on those states’ failure to adopt adequate controls themselves. During the comment period, at least one commenter had objected that the analysis underlying the plan assumed it would go into effect in all the states, but if some states were able to avoid it (for example, because they brought a successful legal challenge to EPA’s conclusion that their own efforts had been in adequate) the analysis would have to be reassessed. Although EPA produced a “Response to Comments” that was 1100 pages long, it did not directly address this concern. Instead, it made clear in the final rule that should any state drop out, the plan would remain in effect for the remaining states. Various states challenged the FIP; the case reached the Supreme Court on a motion for a stay. Thus, the Court did not rule on the ultimate validity of the FIP; it did conclude, 5-4, that the challengers were likely to succeed on the merits. Why? Because EPA’s decision had been arbitrary and capricious.

Recall that EPA’s plan rested on an assumption that all 23 upwind States would adopt emissions-reduction tools up to a “uniform” level of “costs” to the point of diminishing returns. But as the applicants ask: What happens—as in fact did happen—when many of the upwind States fall out of the planned FIP and it may now cover only a fraction of the States and emissions EPA anticipated? Does that affect the “knee in the curve,” or the point at which the remaining States might still “maximiz[e] cost-effectiv[e]” downwind ozone-level improvements? As “the mix of states changes, ... and their particular technologies and industries drop out with them,” might the point at which emissions-control measures maximize cost-effective downwind air-quality improvements also shift?

Although commenters posed this concern to EPA during the notice and comment period, EPA offered no reasoned response. Indeed, at argument the government acknowledged that it could not represent with certainty whether the cost-effectiveness analysis it performed collectively for 23 States would yield the same results and command the same emissions-control measures if conducted for, say, just one State. Perhaps there is some explanation why the number and identity of participating States does not affect what measures maximize cost-effective downwind air-quality improvements. But if there is an explanation, it does not appear in the final rule. As a result, the applicants are likely to prevail on their argument that EPA’s final rule was not “reasonably explained,” that the agency failed to supply “a satisfactory explanation for its action[,]”and that it instead ignored “an important aspect of the problem” before it.

In dissent, Justice Barrett casts real doubt on this description of what happened. On her account, no commentator actually raised the concern on which the Court focuses. “The Court concludes otherwise only by putting in the commenters’ mouths words they did not say.” In any event, she found the majority’s fly-specking far too demanding. EPA had said enough to show that its methodology did not in fact depend on the number of participating states. Moreover,

it is unlikely that EPA’s response to comments evinces a “fail[ure] to consider an important aspect of the problem.” An agency must respond to “ ‘relevant’ and ‘significant’ public comments,” and that requirement is not “particularly demanding”; the “agency need not respond at all to comments that are ‘purely speculative and do not disclose the factual or policy basis on which they rest.’ ” Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (CADC 1993); see § 7607(d)(6)(B) (EPA must respond to “significant” comments). EPA received hundreds of comments, and its response numbered nearly 1,100 pages. Given the likelihood that the FIP's emissions limits did not depend on the covered States, the risk of it applying to fewer States may not be “important,” and comments purportedly raising that possibility might not be “relevant” and “significant.” Moreover, the one comment that vaguely referred to a need for a “new assessment and modeling,” was “purely speculative” and “disclose[d]” no “factual or policy basis”; it likely merited no response. Requiring more from EPA risks the “sort of unwarranted judicial examination of perceived procedural shortcomings” that might “seriously interfere with that process prescribed by Congress.” Vermont Yankee.

Page 519. Add the following to Note 1.

     The Federal Supplement citation for the 2021 Texas v. United States decision enjoining the DACA program is 549 F. Supp. 3d 572.

In October 2022, the Fifth Circuit affirmed. 50 F.4th 498 (5th Cir. 2022). In rejecting the argument that DACA was a general statement of policy, the court found that the program conferred extremely significant rights on the beneficiaries. It was true that agents implementing the program did have some discretion and in that sense it was not "binding." But that did not turn DACA into a statement of policy; discretion is a necessary but not sufficient characteristic of a policy statement. "Here, little else suggests that DACA would be a policy statement. DACA created a detailed, streamlined process for granting enormously significant, predefined benefits to over 800,000 people. This constitutes a substantive rule."

On his first day in office, President Biden signed a memorandum instructing the Secretary of Homeland Security to “take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.” Thus nudged, in September 2021 DHS issued a proposed rule that essentially tracked the 2012 program. 86 Fed. Reg. 53,736. After received over 16,000 comments and making modest adjustments, DHS promulgated a final rule in August 2022. 87 Fed. Reg. 53,152. The notice-and-comment process presumably cures any procedural defect with DACA. Substantive concerns remain, however.

The new regulation was issued before, but was not at issue in, the Fifth Circuit’s decision. However, that opinion concluded that the 2012 policy was substantively invalid under the Immigration and Naturalization Act, and its reasoning and conclusion would seem applicable to the 2022 regulation. The Court of Appeals remanded the case to the District Court with instructions to consider issues arising from the new regulation. That court held the regulation invalid on substantive grounds because it was essentially identical to the 2012 policy. Texas v. United States, 691 F. Supp. 3d 763 (S.D. Tex. 2023). An appeal is pending.

Page 546. Add the following to Note 3.

     A middle approach is found in the statute that authorizes OSHA to promulgate Emergency Temporary Standards that was in play in the NFIB case described in the update to page 87 in chapter 1. Here is the relevant provision:

(c) Emergency temporary standards

      (1) The Secretary shall provide, without regard to the requirements of chapter 5 of title 5, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.

      (2) Such standard shall be effective until superseded by a standard promulgated in accordance with the procedures prescribed in paragraph (3) of this subsection.

      (3) Upon publication of such standard in the Federal Register the Secretary shall commence a proceeding in accordance with subsection (b), and the standard as published shall also serve as a proposed rule for the proceeding. The Secretary shall promulgate a standard under this paragraph no later than six months after publication of the emergency standard as provided in paragraph (2) of this subsection.

29 U.S.C. §655. The provision explicitly authorizes an interim final rule, issued without notice and comment; that rule also serves as a proposed rule for public comment. (The cross-reference to subsection (b) found in subsection (c)(3) is to procedural requirements specific to OSHA rulemaking.) In theory, a final final rule must be issued within six months of the interim final rule. Note, however, that the interim final rule is effective not just for six months but until it is replaced by a final final rule. So there is plenty of room for slippage.

Page 633. Add the following before the final paragraph on this page.

     Traditionally, the Attorney General issues a “FOIA Memorandum” early in each presidential administration. These memoranda describe the conditions under which the Justice Department will defend an agency’s decision to withhold, and they have varied in tone, emphasis, and to some extent substance from administration to administration. AG Merrick Garland issued such a memorandum in March 2022. See Memorandum for Heads of Executive Departments and Agencies Re. Freedom of Information Act Guidelines (Mar. 15, 2022). The most striking feature of the Garland memorandum is its emphasis on the presumption of openness contained in the 2016 amendments. The memo quotes the statute’s foreseeable harm standard and states that “in case of doubt” regarding whether an “agency can identify a foreseeable harm or legal bar to disclosure,” “openness should prevail.” Further, in an apparent effort to ensure that agencies really do take the foreseeable harm requirement seriously, the memo directs agencies to confirm “that they have considered the foreseeable harm standard when reviewing records and applying FOIA exemptions” in letters responding to FOIA requesters.