This clerical update was necessitated by the fact that substantive amendments expanding the Section 112 regime—broadening the definition of “hazardous air pollutant” and changing the program’s focus to source categories—had renumbered and restructured Section 112(b).
As an initial matter, there is no true conflict between the amendments. Amendments are executed in the order of their appearance,107 and the House Amendment appears first in the 1990 Act, striking the reference to “112(b)(1)(A).” Accordingly, the Senate Amendment fails to have any effect, because it is no longer necessary to “strik[e] ‘112(b)(1)(A)’” to conform the Section 112 exclusion to the revised Section 112.108 The U.S. Code provision, in other words, fully enacts both amendments.
In any case, the U.S. Code provision is also consistent with Congress’s intent in enacting both amendments, which address different aspects of the scope of EPA’s authority. The House Amendment added a limitation to the scope of Section 111(d): where a category of sources is regulated under Section 112, Section 111(d) cannot be used to impose additional performance standards on that source category. The purpose was to ensure that existing source categories regulated under Section 112—which the 1990 Act substantially revised to focus on source categories rather than pollutants—would not face additional costly regulation under Section 111.109
The Senate Amendment had a different focus, seeking to maintain the pre‐1990 prohibition on using Section 111(d) to regulate emissions of hazardous air pollutants from existing sources regulated under Section 112. Failure to retain that limitation would have allowed EPA to undo Congress’s considered decision to regulate only certain sources of hazardous air pollutants: the 1990 Act requires EPA to regulate all major sources of hazardous air pollutants, but only those area sources representing 90 percent of area source emissions, thereby sparing many smaller sources from the stringent Section 112 regime.110 42 U.S.C. § 7412(c)(3). In other words, the Senate Amendment restrains EPA from circumventing this limitation by simultaneously regulating the same emissions under both Section 112 and 111(d) and thereby burdening all sources, even the ones Congress exempted from regulation.
Thus, by blocking both double regulation and circumvention of the Section 112(c)(3) area‐source limitation, the U.S. Code provision achieves Congress’s intent underlying both amendments and constitutes a statutory limitation on EPA’s authority. But even if there were a conflict, an agency or court “must read [allegedly conflicting] statutes to give effect to each if [it] can do so while preserving their sense and purpose.”111 Thus, even assuming arguendo that there is a potential conflict, EPA’s interpretation must be rejected because it deprives the House Amendment of any effect. EPA cannot attempt to manufacture ambiguity to expand its interpretative license and ability to pursue its policy goals.
The second statutory defect in EPA’s overall approach is more fundamental: the statute does not permit EPA’s generation‐shifting approach, only allowing it to specify standards of performance applicable to, and achievable by, particular sources.112 In EPA’s view, “anything that reduces the emissions of affected sources may be considered a ‘system of emission reduction’” for purposes of Section 111. 79 Fed. Reg. at 34,886/1.That includes requiring a source owner or operator to shift generation to another source. But while the first “building block”—reducing emissions by improving sources’ efficiency— may be lawful to the extent that it is “achievable,” measures that involve reducing the utilization of coal‐fired power plants in favor of other generation sources are not permissible components of the “best system of emission reduction” that underlies a Section 111 standard.
This is plain on the face of the statute. Section 111(d) requires states to “establish standards of performance for any existing source” that is already subject to a new source performance standard.113 Likewise, Section 111(d) requires EPA to establish “standards of performance for new sources” within listed categories.114 These provisions simply do not authorize obligations regarding other sources—for example, that application of a performance standard to a coal‐fired plant would require increased utilization of some other facility that is not subject to the standard. Confirming as much, Section 111(e) enforces new source performance standards by providing that it is “unlawful for any owner or operator” of a regulated source to violate any such applicable standard.115
Indeed, a “best system of emission reduction,” which is used to determine an emission standard, must be both “achievable” and “adequately demonstrated,” but those requirements would be nullified if generationshifting (which is always an achievable and adequately demonstrated means of reducing emissions) in favor of other sources or reduced output were a permissible basis for a performance standard.116 Achievability, the D.C. Circuit has long held, must therefore be demonstrated with respect to the regulated source category itself.117
Moreover, Section 111 expressly regulates sources’ emissions “performance,” which concerns the rate of emissions at a particular level of production, and not the level of production. In other words, mandating that a highemissions facility shifting production to another facility may reduce emissions, but it has nothing to do with that facility’s emissions performance. In‐deed, in its Section 111 regulations, EPA determines “performance” by measuring “pollutant emission rates” with respect to particular levels of production.118 Similarly, its regulations do not regard “[a]n increase in production rate of an existing facility” as a modification triggering application of new source performance standards.119
In light of these and many other statutory features, the courts have had no difficultly in recognizing that “best system of emission reduction” refers to measures applicable to a particular facility. The Supreme Court, viewing this language, recognized that it refers to “technologically feasible emission controls”—that is, emission‐reduction technologies implemented at the source.120
EPA’s own regulations reflect the same understanding. Its regulations establishing procedures for state plans pursuant to Section 111(d) define compliance in terms of the purchase and construction of “emission control systems” and “emission control equipment,” as well as other “on‐site” activities.121 They require EPA to publish guidelines “containing information pertinent to control of the designated pollutant form [sic] designated facilities,” which in turn refers to “any existing facility which emits a designated pollutant.”122 Likewise, EPA’s guidelines must reflect “the application of the best system of emission reduction (considering the cost of such reduction) that has been adequately demonstrated for designated facilities.”123 These citations are just the tip of the iceberg. A complete recitation of all the EPA regulatory actions that treat “best system of emission reduction” as referring to on‐site measures would go on for pages. A recent example is the agency’s proposed performance standards for new power plants—released less than two weeks after the Plan—which reaffirms that Section 111 standards of performance “apply to sources” and must be “based on the BSER achievable at that source.”124
The Plan was, as noted above, stayed by the Supreme Court, and its lawfulness is currently being litigated before the D.C. Circuit, with a decision ex‐pected before the end of the year. It is not premature, however, to identify the Plan as an example of executive overreaching: it seeks to effect a transformation of the U.S. energy economy by contorting an obscure statutory provision into license for EPA to regulate the central aspects of electricity generation and distribution across the nation. Whether or not ultimately upheld by the Judicial Branch, this kind of action involves the sort of major questions that are properly decided by Congress in exercise of its legislative power.
And it certainly bears all the hallmarks of overreaching: circumvention of Congress to achieve a major policy priority; a rush to change the facts on the ground prior to the completion of judicial review; aggressive statutory interpretation; the “discovery” of broad authority in long‐dormant statutory provisions; and extensive reliance on interpretative deference canons. It also adds one not previously discussed in this testimony: trenching on the vertical separation of powers, which (as my colleague David Rivkin has observed) often results when the Executive Branch acts to breach the horizontal separation of powers.
V. Opportunities for Reform
The Legislative Branch can and should act to restrain executive overreaching and thereby assert and defend its own interests, those of the citizens its members represent, and the liberties of the American people. The section proposes several different areas of action.
- Rethink Judicial Deference to Agency Interpretations of Statutes and Regulations. Judicial review is one of the most important checks on executive action. But it is also crucial for safeguarding the interests of the Legislative Branch, because it is the judiciary that measures the execution of the law against what Congress has actually legislated. It is therefore appropriate that this body should consider the effectiveness of judicial review and opportunities for improvement and reform. In particular, it should consider whether and how to address the deference that courts afford to agencies’ interpretations of their own regulations (often referred to as “Auer deference” or “Seminole Rock deference”) and of statutes they administer (“Chevron deference”).
Giving agencies the authority to interpret their rules is not a constitutional command, but a matter of congressional delegation or authorization. The Court “presume[s] that the power authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers.”125 Thus, when considering which of several competing actors should be entitled to such deference, the Court has asked “to which…did Congress dele‐gate this ‘interpretive’ lawmaking power.”126 There is no reason to believe that the presumption of delegated or conferred authority is inviolable; any power that Congress may confer on an agency, it can also rescind. Nor is there any reason to believe that the power to interpret regulations—to say what the law is, without deferring—is one that the Constitution forbids assigning to the courts, consistent with the requirements of Article III.127 Indeed, the courts routinely exercise that power today, in cases where agencies have not addressed a particular interpretative question or have been denied deference.128 Accordingly, through legislation, Congress could abrogate Auer deference, leaving courts to interpret agency rules de novo or according to their “power to persuade.”
There are good reasons to do so. As Professor John Manning has written, according “the agency lawmaker…effective control of the exposition of the legal text that it has created,” Auer deference, unlike Chevron, “leaves in place no independent interpretive check on lawmaking by an administrative agency.”129 This is problematic for the reason identified by Montesquieu and embraced by the Framers: “[w]hen legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.”130
As Manning explains, allocating legislative and executive power to the same entity has serious consequences for individual liberty. First, it encourages an agency to issue imprecise or vague regulations, “secure in the knowledge that it can insist upon an unobvious interpretation, so long as its choice is not ‘plainly erroneous.’”131 Second, it undermines accountability, by removing an independent check on the application of law that is illconsidered or unwise. Third, it “reduces the efficacy of notice‐andcomment rulemaking” by permitting the agency “to promulgate imprecise or vague rules and to settle upon or reveal their actual meaning only when the agency implements its rule through adjudication.”132 Fourth, “[Auer] deference disserves the due process objectives of giving notice of the law to those who must comply with it and of constraining those who enforce it.”133 Finally, Auer may distort the political constraints on agency action by making it “more vulnerable to the influence of narrow interest groups” who are able “to use “ambiguous or vague language to conceal regulatory outcomes that benefit [themselves] at the expense of the public at large.”134 In recent opinions, members of the Supreme Court have expressed similar views.135
Overruling Auer—whether by judgment or by legislation—would hardly be an avulsive change in the law. And it would have the benefits of fortifying the constitutional separation of powers, improving notice of the law, and ultimately advancing individual liberty. It is a reform worthy of serious consideration.
Congress may also wish to consider courts’ continued application of Chevron deference. One aspect of Justice Scalia’s Perez concurrence that has attracted considerable attention is his suggestion that fixing the pathologies of administrative law may require reconsideration of Chevron deference.136 His remark speaks to a broader dissatisfaction—on the Court, among regulated parties and the public, and in the academy—with the current state of administrative authority. Where agencies once were viewed as delegates of Congress, simply “fill[ing] up the details” of congressional enactments,137 the Executive Branch has become a primary, if not the primary, mover in making federal law, supplanting Congress.138 Scalia’s criticism is notable because he is often seen as the leading expo‐nent of judicial deference to agencies, in general, and of Chevron, in particular.
Chevron’s impact cannot be overstated—at least, its impact on the Executive Branch. It has fundamentally changed the way that agencies go about their business of interpreting governing statutes. The search for meaning in Congress’s commands has been replaced with a hunt for ambiguities that might allow the agency to escape its statutory confines.139 In other words, whatever its effect in court cases—which is hotly disputed—Chevron has transformed the way that the Executive Branch pursues its policy objectives. No matter Chevron’s specifics in judicial proceedings, executive agencies have come to see it as a license for improvisation and lawmaking, so long as an escape‐hatch of ambiguity can be found—and it always can.140 Whether or not Chevron has reduced judicial discretion, it has unleashed the Executive Branch and upset the balance of power between it and Congress. This is the “mood” of Chevron deference.141
And yet Chevron has arguably failed at its primary purposes of cabining judicial discretion and increasing deference to agencies’ policy determinations. Empirical studies “show that immediately after the Chevron decision, the rate of affirmance of agency interpretations rose substantially, especially at the court of appeals level, but then in subsequent years it has settled back to a rate that is very close to where it was before Chevron.”142 One “study found that approval of an agency interpretation is less likely in cases in which Chevron is cited.”143 And another found that Chevron has been unsuccessful in “eliminat[ing] the role of policy judgments in judicial review of agency interpretations of law.”144 Despite Chevron’s conceptual merits, its actual application in the courts leaves much to be desired.
As with Auer, Congress may supplant Chevron. Congress could, for example, specify that agency interpretations would be subject only to Skidmore deference—that is, according to their power to persuade—just as it has done with review of certain agency action under the Dodd–Frank Wall Street Reform and Consumer Protection Act.145 Or it could specify, as the Supreme Court actually once held post‐Chevron, that “a pure question of statutory construction [is] for the courts to decide.”146 In fact, Congress already has specified that, in the Administrative Procedure Act.147 So it will apparently have to be more emphatic if it intends to overrule or limit Chevron.
- Reconsider Congress’s Role in Rulemaking. The Congressional Review Act provides a (cumbersome and generally ineffective) procedure for Congress to disapprove certain agency action, subject to the President’s veto power. But it bears considering whether the CRA inverts the proper order of lawmaking under the Constitution, which makes Congress—not any agency—the primary actor in setting generally applicable laws. Proposals like the REINS Act would reassert Congress’s constitutional authority by requiring that at least major rules be subject to congressional approval before they take effect. Professor Jonathan Adler persuasively argues that the REINS Act would “enhance regulatory accountability and popular input on major regulatory proposals,” without compromising the government’s ability to undertake needed regulatory initiatives.148 It would also go a long way to deterring, or as necessary blocking, regulations that contravene congressional understanding of the Executive’s statutory authority and discretion.
- Ensure the Availability and Effectiveness of Judicial Review. Recent actions by EPA suggest that the Executive Branch may be seeking to take improper advantage of its agility, relative to the other branches, by forcing compliance with legally questionable rules like Utility MACT and the Clean Power Plan. A party seeking to enjoin a lawfully promulgated rule bears an unusually heavy burden, such that many rules that ultimately fail judicial review are nonetheless allowed to go into force, and remain in effect, during the pendency of litigation challenging their lawfulness. As a result, rules that are ultimately held unlawful may nonetheless compel parties to invest heavily in compliance, achieving their supporters’ policy prerogatives through sheer force of edict. In this way, the executive can act to deny regulated parties their rights under law.
Congress can act to curb this kind of abuse. The most straightforward approach, in general, would be to provide for an automatic stay of rules that impose costs above a certain threshold and are subject to judicial challenge, while also providing that, when a stay is imposed, judicial proceedings be expedited. In this way, serious questions regarding agency authority could be decided in relatively short order, before parties are required to undertake burdensome compliance measures that may ultimately prove unwarranted. Such relief could be limited, as appropriate, to rules promulgated under particular statutes (e.g., the Clean Air Act and Communications Act) or by certain agencies, with narrow exceptions for rules that the President certifies are vital to national security. The point here is not so much to identify every possible exception that may be worthy of consideration, but only to note that a law providing for automatic stays need not be absolute and can be flexibly crafted so as to address possible concerns. In other words, Congress can strike a better balance between the benefits of timely federal action and adherence to the rule of law.
- Reconsider Broad Delegations and Discretionary Authority in Domestic Affairs. In many instances of executive overreaching, at least some blame should be placed at Congress’s feet. In the episodes described in this paper, as well as many others, the Administration has sought to take advantage of broad, vague, or otherwise uncertain statutory delegations of authority. At one time, Congress could reasonably expect that the Executive Branch would not seek to take advantage of unclear or ambiguous statutory language as a basis for launching broad policy initiatives—those kinds of issues, it was understood, would be left to Congress. But that time has past, and many statutes on the books are invitations to mischief by agencies that wish to achieve their policy priorities without going through the legislative process. At the least, Congress should take care in the laws that it enacts so as to avoid providing greater discretion than it intends. Congress should also revisit existing laws that have proven problematic or that appear open to abuse. In particular, many statutes contain waiver provisions that, while intended to authorize exceptions from rules that are otherwise generally applicable, are sufficiently broad as to provide at leastan arguable basis for general application themselves. These are ripe for reform.
- Limit Collusive Litigation (AKA “Sue and Settle”). “Sue and settle” raises serious concerns about the conduct and resolution of litigation that seeks to set agency regulatory priorities and (in some instances) actually influences the content of those regulations. Since the House Judiciary Committee first directed its attention to the problem of collusive settlements in 2012,149 there have been a myriad of hearings and reports focusing on this problem, as well as the introduction of legislation to constructively address it. Recent examples show that the problem is real, it is serious, and it is, if anything, getting worse.
Congress can and should adopt certain common‐sense policies that provide for transparency and accountability in settlements and consent decrees that compel future government action. Legal experts have given considerable thought on how to alter the incentives and the legal environment that facilitate collusive settlements. Over the past three years, Members of the House and Senate have developed several bills that seek to carry out the principles identified in my 2012 testimony on abuses of settlements and consent decrees. The most comprehensive of those bills, the Sunshine for Regulatory Decrees and Settlements Act, passed the House in the previous Congress, and (as reintroduced this Congress) has drawn strong support in the Senate.
That bill’s approach represents a leap forward in transparency, requiring agencies to publish proposed settlements before they are filed with a court and to accept and respond to comments on proposed settlements. It also requires agencies to submit annual reports to Congress identifying any settlements that they have entered into. The bill loosens the standard for intervention, so that parties opposed to a “failure to act” lawsuit may intervene in the litigation and participate in any settlement negotiations. Most substantially, it requires the court, before approving a proposed consent decree or settlement, to find that any deadlines contained in it allow for the agency to carry out standard rulemaking procedures. In this way, the federal government could continue to benefit from the appropriate use of settlements and consent decrees to avoid unnecessary litigation, while en‐suring that the public interest in transparency and sound rulemaking is not compromised.
Other proposed legislation focuses on settlements under specific statutory regimes. For example, the Endangered Species Act (ESA) Settlement Reform Act150 would amend the ESA to provide, in cases seeking to compel the Fish and Wildlife Service to make listing determinations regarding particular species, many of the procedural reforms contained in the Sunshine for Regulatory Decrees and Settlements Act, such as broadening intervention rights to include affected parties and allowing them to participate in settlement discussions. In addition, as particularly relevant in this kind of litigation, the bill would require that notice of any settlement be given to each state and county in which a species subject to the settlement is believed to exist and gives those jurisdictions a say in the approval of the settlement. In effect, this proposal would return discretion for the sequencing and pace of listing determinations under the ESA to the Fish and Wildlife Service, which would once again be accountable to Congress for its performance under the ESA. Similarly, the Reducing Excessive Deadline Obligations Act of 2013,151 which was introduced in the last Congress and passed the House, would have amended the Resource Conservation and Recovery Act to remove a nondiscretionary duty that EPA review and, if necessary, revise all current regulations every three years and the Comprehensive Environmental Response Compensation and Liability Act to remove a 1983 listing deadline that has never been fully satisfied.152 The effect of these amendments would have been to reduce the opportunity for citizen suits seeking to set agency priorities under these obsolete provisions.
- Be Realistic in Setting Mandatory Duties. The “sue and settle” phenomenon suggests that there may be a broader issue at play than just collusion in litigation. Congress may wish to consider a more comprehensive approach that limits the ability of third parties to compel Executive Branch action. Suing to compel an agency to act on a permit application or the like is different in kind from seeking to compel it to issue generally applicable regulations or take action against third parties. As Justice Anthony Kennedy has observed, “Difficult and fundamental questions are raised” by citizen‐suit provisions that give private litigants control over actions and decisions (including the setting of agency priorities) “committed to the Executive by Article II of the Constitution of the United States.”153 Constitutional concerns aside, at the very least, the ability to compel agency action through litigation and settlements gives rise to the policy concerns identified above, suborning the public interest to special interests and sacrificing accountability.
The sue‐and‐settle phenomenon is facilitated by the combination of broad citizen‐suit provisions with unrealistic statutory deadlines that private parties may seek enforced through citizen suits. According to William Yeatman of the Competitive Enterprise Institute, “98 percent of EPA regulations (196 out of 200) pursuant to [Clean Air Act] programs were promulgated late, by an average of 2,072 days after their respective statutorily defined deadlines.”154 Furthermore, “65 percent of the EPA’s statutorily defined responsibilities (212 of 322 possible) are past due by an average of 2,147 days.”155 With so many agency responsibilities past due, citizen‐suit authority allows special‐interest groups (whether or not in collusion or philosophical agreement with the agency) to use the courts to set agency priorities. Not everything can be a priority, and by assigning so many actions unrealistic and unachievable nondiscretionary deadlines, Congress has inserted the courts into the process of setting agency priorities, but without providing them any standard or guidance on how to do so. It should be little surprise, then, that the most active repeat players in the regulatory process—the agency and environmentalist groups—have learned how to manipulate this situation to advance their own agendas and to avoid, as much as possible, accountability for the consequences of so doing.
Two potential solutions suggest themselves. First, a deadline that Congress does not expect an agency to meet is one that ought not to be on the books. If Congress wants to set priorities, it should do so credibly and hold agencies to those duties through oversight, appropriations, and its other powers. In areas where Congress has no clear preference as to timing, it should leave the matter to the agencies and then hold them accountable for their decisions and performance. What Congress should not do is empower private parties and agencies to manipulate the litigation process to set priorities that may not reflect the public interest while avoiding the po‐litical consequences of those actions. To that end, Congress should seriously consider abolishing all mandatory deadlines that are obsolete and all recurring deadlines that agencies regularly fail to observe.156 Second, Congress should consider narrowing citizen‐suit provisions to exclude “failure to act” claims that seek to compel the agency to consider generally applicable regulations or to take actions against third parties. As a matter of principle, these kinds of decisions regarding agency priorities should be set by government actors who are accountable for their actions, and subject to congressional oversight, not by litigants and not through abusive litigation.
Executive overreach is a serious problem and the Task Force should be commended for its efforts to identify the scope of the problem and potential solutions. I thank the subcommittee for the opportunity to testify on these important issues and look forward to your questions.
1See Bond v. United States, 131 S. Ct. 2355, 2365 (2011).
2 42 U.S.C. § 607(a).
3 42 U.S.C. §§ 607(a)(1), (a)(2).
5 5 42 U.S.C. § 607(b).
6 42 U.S.C. § 607(e)(1).
7 42 U.S.C. §§ 607(e)(1), (e)(2).
8 42 U.S.C. § 607(b)(1)(B).
9 42 U.S.C. § 607(d).
10 42 U.S.C. §§ 607(c)(1)(A), (1)(B).
11 42 U.S.C. § 607(c)(1)(D).
12 42 U.S.C. § 607(i). See also 42 U.S.C. § 609(a)(15) (imposing penalties for states’ failure tocomply with work participation verification procedures).
13 42 U.S.C. § 609(a)(14).
14 42 U.S.C. § 609(a)(3).
15 Memorandum from Earl Johnson, Director, Office of Family Assistance, to States administeringthe TANF Program and other interested parties (July 12, 2012), at 1, available at http://www.acf.hhs.gov/programs/ofa/policy/im-ofa/2012/im201203/im201203.html.
17Id. at 2.
19 Letter from Dave Camp, Chairman, House Ways and Means Committee, and OrrinHatch, Ranking Member, Senate Finance Committee, to Kathleen Sebelius, Secretary of Health and Human Services (July 12, 2012), available at http://waysandmeans.house.gov/UploadedFiles/7.12.12_TANF_work_requirements_letter.
20 Letter from Kathleen Sebelius, Secretary of Health and Human Services, to Orrin Hatch,Ranking Member, Senate Finance Committee (July 18, 2012), available at http://www.washingtonpost.com/blogs/ezra-klein/files/2012/07/Sen-Hatch-TANF-7–18-.pdf..
21Id. at 4.
24 42 U.S.C. § 1315(a)(1).
25 42 U.S.C. §§ 602(a), 603(a)(1)(A).
26 42 U.S.C. § 602(a)(1)(A).
27 42 U.S.C. § 602(a)(1)(A)(iii).
28See, e.g., United States v. Giordano, 416 U.S. 505, 514 (1974).
29 42 U.S.C. §§ 607(a)(1), (a)(2), (e)(1).
31 Compare 42 U.S.C. §§ 607(a)(1), (a)(2) with 42 U.S.C. § 607(e)(1)
32 42 U.S.C. § 602(a)(4).
33See 42 U.S.C. § 607(a)(1) (work requirements apply only to “a State to which a grant ismade).
34 4 In particular, 42 U.S.C. 607(e)(1) grants states some discretion to establish “exceptions” to the recipient work requirement, although they remain subject to the minimum work participation rate requirements.
35 42 U.S.C. § 608(a)(1).
36 42 U.S.C. §§ 609(a)(3)(A), (a)(14)(A), (a)(15)(A).
37 42 U.S.C. § 602(a) (1994)
38 42 U.S.C. § 601(a).
39United States v. Wells, 519 U.S. 482, 495–96 (1997) (rejecting ratification argument whereCongress reenacted statute).
40Portland Adventist Medical Center v. Thompson, 399 F.3d 1091, 1099 & n.9 (9th Cir. 2005).
41 42 U.S.C. § 615(a)(1)(A).
42 42 U.S.C. § 615(a)(2)(A)
43 42 U.S.C. § 615(a)(2)(B).
44 Sebelius letter, at 4.
45 Remarks by the President on College Affordability, Oct. 26, 2011,http://www.whitehouse.gov/the-press-office/2011/10/26/remarks-presidentcollegeaffordability.
46See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
47See 5 U.S.C. § 704.
48 Other than taxpayers, but taxpayer status is generally insufficient to confer standing. SeeFrothingham v. Mellon, 262 U.S. 447 (1923).
49Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014).
50 74 Fed. Reg. 66496 (2009).
51 75 Fed. Reg. 17004 (2010).
52 42 U.S.C. § 7475.
53 42 U.S.C. § 7479(1).
54 This account is somewhat simplified for concision. The rule actually involves severalthresholds and phases, as well as the “Title V” program, none of which alters this legal analysis.
55See Coalition for Responsible Regulation v. EPA, 684 F.3d 102, 146 (D.C. Cir. 2012).
57 467 U.S. 837, 842–843 (1984).
58 8 134 S. Ct. at 2443 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 156(2000)).
59Id. at 2445.
61Id. at 2446 (quotation marks omitted).
63Id. at 2446.
64 4 42 U.S.C. § 7412.
65Id. § 7412(c)(1)–(2).
66Id. § 7412(a)(1).
67Id. § 7412(d)(3)(A).
68Michigan, 135 S. Ct. at 2705.
69See generally, Nat’l Lime Ass’n v. EPA, 233 F.3d 625, 633–34 (D.C. Cir. 2000); S. Rep. No.101–228, at 131–33 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3516–18.
70 42 U.S.C. § 7412(n)(1)(A). See also 136 Cong. Rec. 3493 (Mar. 6, 1990) (statement of Sen.Symms); 136 Cong. Rec. H12911, 12934 (daily ed. Oct. 26, 1990) (statement of Rep. Oxley).
71 42 U.S.C. § 7412(n)(1)(A) (emphasis adde
72Id. For an account of the events leading up to entry of the consent decree, see Andrew M.Grossman, Regulation Through Sham Litigation: The Sue and Settle Phenomenon 5–7(2014), available at http://www.heritage.org/research/reports/2014/02/regulation-throughsham-litigation-the-sue-and-settle-phenomenon.
73 77 Fed. Reg. 9,304, 9,310–64 (Feb. 16, 2012).
74 See id. at 9,311.
75Id. at 9,327
76Id. (emphasis added).
77 See id.
78Id. at 9,305–06.
79 White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222, 1263 (D.C. Cir. 2014), (Kavanaugh, J., concurring in part and dissenting in part) (citing James E. McCarthy, Congressional Research Service, R42144, EPA’s Utility MACT: Will the Lights Go Out? 1 (2012)).
80 See 77 Fed. Reg. at 9,306, Table 2, 9,427–28. For a description of EPA’s convoluted approach to estimating and monetizing these benefits, see Brief for the Cato Institute as Amicus Curiae, Michigan v. EPA, 135 S. Ct. 2699 (2015), available at https://object.cato.org/sites/cato.org/files/pubs/pdf/michigan-v-epa-merits.pdf (“Cato Michigan Brief”).
81 77 Fed. Reg. at 9,306 & Table 2.
82White Stallion, 748 F.3d at 1261 (Kavanaugh, J., concurring in part and dissenting in part).
83Id. at 1261 (Kavanaugh, J., concurring in part and dissenting in part).
84 135 S. Ct. 702 (2014).
85 135 S. Ct. at 2706 (quoting Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374(1998)).
86Id. (quoting State Farm, 463 U.S. at 43).
87Id. at 2707.
89Id. at 2708.
90Id. at 2707 (quoting State Farm, 463 U.S. at 43) (alteration in original).
93 Janet McCabe, In Perspective: the Supreme Court’s Mercury and Air Toxics Rule Decision,June 30, 2015, https://blog.epa.gov/blog/2015/06/in-perspective-the-supreme-courtsmercury-and-air-toxics-rule-decision/.
94 See Petition for Certiorari, Michigan v. EPA, No. 15–1152 (filed Mar. 14, 2016).
95 Order, Chamber of Commerce v. EPA, No. 15A787, et al. (filed Feb. 9, 2016).
96 42 U.S.C. § 7411.
97 42 U.S.C. § 7411(d)(1)(A)(i).
98 131 S. Ct. 2527, 2537 n.7 (2011).
99 70 Fed. Reg. 15,994, 16,031 (Mar. 29, 2005). Accord EPA, Air Emissions From MunicipalSolid Waste Landfills — Background Information For Final Standards And Guidelines 1–6(1995) (explaining that the Section 112 exclusion applies “if the designated air pollutantis…emitted from a source category regulated under section 112”); Final Brief of Respondentat 105, New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008) (No. 05–1097) (“[A] literal readingof this provision could bar section 111 standards for any pollutant, hazardous or not, emittedfrom a source category that is regulated under section 112.”); 69 Fed. Reg. 4,652, 4,685 (Jan.30, 2004) (“A literal reading…is that a standard of performance under CAA section 111(d)cannot be established for any air pollutant that is emitted from a source category regulatedunder section 112.”); EPA, Legal Memorandum for Proposed Carbon Pollution EmissionGuidelines for Existing Electric Utility Generating Units 26 (2014) (“EPA Legal Memorandum”)(“[A] literal reading of that language would mean that the EPA could not regulate anyair pollutant from a source category regulated under section 112.”).
100Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842–43 (1984).
101E.g., EPA Legal Memorandum 22–23.
102 42 U.S.C. § 7411(d) (1989).
103 70 Fed. Reg. at 16,031.
104 Pub. L. No. 101–549, § 108(g), 104 Stat. 2399, 2467 (1990).
105 Legislative Drafting Manual, Office of the Legislative Counsel, United States Senate 28(1997) (“Senate Manual”).
106 Pub. L. No. 101–549, § 302(a), 104 Stat. 2399, 2574 (1990).
107 Manual on Drafting Style, House Legislative Counsel 42 (1995); Senate Manual 33. Seealso Donald Hirsch, Drafting Federal Law § 2.2.3, p.13 (U.S. House Office of LegislativeCounsel, 2d ed. 1989); Lawrence E. Filson & Sandra L. Strokoff, The Legislative Drafter’sDesk Reference § 14.4, p.191 (CQ Press, 2d ed. 2008). The Supreme Court recognizes thesetreatises as authoritative on legislative drafting. See Koons Buick Pontiac GMC, Inc. v. Nigh, 543U.S. 50, 60–61 & n.4 (2004); id. at 71 (Scalia, J., dissenting).
108 See Revisor’s Note, 42 U.S.C. § 7411 (Senate Amendment “could not be executed, becauseof the prior [House] amendment”). The failure of a subsequent amendment to have any effect,due to changes made by an earlier amendment in the same legislation, is not at all unusual.Oklahoma is aware of more than 30 other instances—including dozens in Title 42alone—in which an amendment to the U.S. Code failed to have any effect due to an earlier amendment. Petitioner’s Opening Brief at 31–32 n.9, In re Murray Energy Corp., 788 F.3d 330(D.C. Cir. filed Mar. 9, 2015).
109 See 70 Fed. Reg. at 16,031 (discussing legislative history and concluding that the HouseAmendment sought to avoid “duplicative or overlapping regulation”).
110 “Major” sources emit or have the potential to emit above a statutorily prescribed thresholdof hazardous air pollutants; “area” sources are those that fall below this threshold. 42 U.S.C.§ 7412(a)(1)–(2).
111Watt v. Alaska, 451 U.S. 259, 267 (1981).
112 42 U.S.C. § 7411(a)(1).
113 42 U.S.C. § 7411(d)(1)(A) (emphasis added).
114 42 U.S.C. § 7411(b)(1)(B).
115 42 U.S.C. § 7411(e).
116 42 U.S.C. § 7411(a)(1).
117Essex Chem. Corp. v. Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973).
118 40 C.F.R. § 60.8(e).
119 40 C.F.R. § 60.14(e).
120Hancock v. Train, 426 U.S. 167, 193 (1976). See also Bethlehem Steel Corp. v. EPA, 651 F.2d861, 869 (3d Cir. 1981) (“system” is something that a source can “install”); PPG Indus., Inc. v.Harrison, 660 F.2d 628, 636 (5th Cir. 1981) (holding that, prior to an amendment authorizingoperational standards, EPA could not “require a use of a certain type of fuel” that would reduceemissions).
121 40 C.F.R. § 60.21(h).
122 §§ 60.22(a), 60.21(b) (cross‐reference omitted).
123 § 60.22(b)(5) (emphasis added).
124 79 Fed. Reg. 36,880, 36,885 (June 30, 2014).
125Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 151 (1991). See alsoFord Motor Credit Co. v. Milhollin, 444 U.S. 555, 566 (1980).
126Martin, 499 U.S. at 151.
127 Congress has, in fact, codified Skidmore-style deference in certain cases. See 12 U.S.C.§ 25b(b)(5)(A).
128E.g., Christopher 132 S. Ct. 2156, 2168–69 (quoting Skidmore v. Swift & Co., 323 U.S. 134,140 (1944)).
129 John Manning, Constitutional Structure and Judicial Deference to Agency Interpretationsof Agency Rules, 96 Colum. L. Rev. 612, 639 (1996).
130Id. at 645 (quoting Montesquieu, The Spirit of the Laws bk. XI, ch. 6, at 157 (Anne Cohleret al. eds. & trans., 1989) (1768)).
131Id. at 657.
132Id. at 662.
133Id. at 669.
134Id. at 676. 135See, e.g., Talk America, Inc. v. Michigan Bell Telephone Co., 131 S. Ct. 2254, 3366 (2011) (Scalia,J., concurring); Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2168 & n.17(2012); Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326, 1338 (2013) (Roberts,C.J., concurring); id. at 1339 (Scalia, J., concurring); Perez v. Mortgage Bankers Association, 135S. Ct. 1199, 1211–13 (2015) (Scalia, J., concurring in the judgment); id. at 1220 (Thomas, J.,concurring in the judgment).
136Perez, 135 S. Ct. at 1213 (Scalia, J., concurring in the judgment). But should it really havebeen such a surprise? See Decker, 133 S. Ct. at 1340 (Scalia, J., concurring in part and dissentingin part) (“…Chevron (take it or leave it)…”); Mead, 533 U.S. at 241–42 (“There is somequestion whether Chevron was faithful to the text of the Administrative Procedure Act (APA),which it did not even bother to cite.”).
137See Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825); United States v. Grimaud,220 U.S. 506, 517 (1911).
138See, e.g., Tim Devaney, Obama’s ‘pen and phone’ barrage, The Hill, Dec. 28, 2014, http://thehill.com/regulation/pending-regs/228093-obamas-pen-and-phone-barrage.
139See, e.g., Jonathan Adler and Michael Cannon, Taxation Without Representation: TheIllegal IRS Rule To Expand Tax Credits Under the PPACA, 23 Health Matrix 119, 195(2013) (describing the “frantic, last‐ditch search for ambiguity by supporters who belatedlyrecognize the PPACA threatens health insurance markets with collapse, which in turn threatensthe PPACA”).
140 Cf. Timothy Noah, Bill Clinton and the Meaning of “Is,” Slate, Sep. 13, 1998,http://www.slate.com/articles/news_and_politics/chatterbox/1998/09/bill_clinton_and_the_meaning_of_is.html.
141 See Kent Barnett, Codifying Chevmore, 90 N.Y.U. L. Rev. 1, 54 n.275 (2015).
142 Jack M. Beerman, End the Failed Chevron Experiment Now: How Chevron Has Failedand Why It Can and Should be Overruled, 42 Conn. L. Rev. 779, 829 (2010) (citing studies).
143Id. (emphasis added).
144 Thomas J. Miles and Cass R. Sunstein, Do Judges Make Regulatory Policy? An EmpiricalInvestigation of Chevron, 73 U. Chi. L. Rev. 823, 825–27 (2006).
145 See 12 U.S.C. § 25b(b)(5)(A).
146I.N.S. v. Cardoza‐Fonseca, 480 U.S. 421, 446 (1987).
147 5 U.S.C. § 706 (“To the extent necessary to decision and when presented, the reviewingcourt shall decide all relevant questions of law, interpret constitutional and statutory provisions,and determine the meaning or applicability of the terms of an agency action.”); § 706(“The reviewing court shall… hold unlawful and set aside agency action, findings, and conclusionsfound to be… n excess of statutory jurisdiction, authority, or limitations, or short ofstatutory right.”). One strike against Chevron (and Seminole Rock and Auer) is that it’s flatlyinconsistent with the APA. Historical evidence suggests that Congress meant what it said in1946, but that courts ultimately adopted the more deferential views expressed in the AttorneyGeneral’s Manual on the Administrative Procedure Act. See Beerman, supra, at 789–90.
148 See Jonathan H. Adler, Would the REINS Act Rein In Federal Regulation?, Regulation,Summer 2011, at 22, available athttps://object.cato.org/sites/cato.org/files/serials/files/regulation/2011/7/regv34n2-2.pdf.
149See generally The Use and Abuse of Consent Decrees in Federal Rulemaking: Hearing beforethe Subcommittee on the Courts, Commercial and Administrative Law, Committee onthe Judiciary, United States House of Representatives, 112th Congress (Feb. 3, 2012), availableat http://judiciary.house.gov/_files/hearings/Hearings%202012/Grossman%2002032012.pdf (written testimony of Andrew M. Grossman, Visiting Legal Fellow, The Heritage Foundation)[hereinafter “2012 Testimony”].
150 H.R. 585; S. 293.
151 H.R. 2279 (113th Cong.).
152See generally Reducing Excessive Deadline Obligations Act of 2013, House Report 113–179(113th Cong.).
153Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 197 (2000) (Kennedy,J., concurring).
154 William Yeatman, EPA’s Woeful Deadline Performance Raises Questions about AgencyCompetence, Climate Change Regulations, “Sue and Settle,” July 10, 2013,http://cei.org/sites/default/files/William%20Yeatman%20-%20EPA%27s%20Woeful%20Deadline%20Performance%20Raises%20Questions%20About%20Agency%20Competence.pdf.
156 One commentator endorses allowing agencies to set their own non‐binding deadlines, subjectto congressional oversight. Alden F. Abbott, The Case Against Federal Statutory andJudicial Deadlines: A Cost‐Benefit Appraisal, 39 Admin. L. Rev. 171, 200–02 (1987).