The dog days of summer mean that this column is filled with many odds and few ends. In new litigation, a dozen states sued the Environmental Protection Agency (EPA) claiming that the agency lacks authority to issue a rule that it has not yet been issued. On the other hand, the National Labor Relations Board (NLRB) ratified some administrative actions taken when it lacked a quorum, but resolved none of the thorny administrative law issues. In the middle, the Federal Communications Commission (FCC) released 1.1 million public comments on its most recent internet neutrality / open internet / fast lane proposals with no material effect because of fundamental unanswered issues in the FCC rulemaking process. And at the far corner of the rulemaking universe, a district court required rulemaking to implement rulemaking in capital habeas corpus proceedings.
EPA Power Plant Litigation: The Attorneys General of Indiana, Ohio, Kentucky, Kansas, West Virginia, Alabama, Kansas, Kentucky, Louisiana, Nebraska, Oklahoma, South Carolina, South Dakota and Wyoming petitioned for review of EPA’s position that it possesses authority to regulate existing coal-fired electric generating plants in West Virginia v. EPA, D.C. Cir. No. 14-1146 (filed Aug. 1, 2014). The petition, filed in the United States Court of Appeals for the District of Columbia Circuit, is based on an interpretive exception to Clean Air Act (CAA) finality and ripeness requirements to attack the predicate authority for EPA’s proposed, not final, Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units.
► The petition for review (PFR) challenges the EPA’s authority per se to regulate existing pollution sources, but stands on an interpretation of an interpretation of jurisdiction over non-final agency action under the CAA. A PFR is a barebones statement of the issues presented for review and the parties will now undertake a detailed exegesis of the complex statutory requirements of the CAA and judicial precedent. This PFR has only a slim chance of success and may be a mere bump in the road to judicial review of the EPA final rule because that final rule – an Administration priority – is likely to be published and judicial review of final agency action would make this petition irrelevant.
NLRB Ratifies Administrative Actions: The NLRB announced in a press release last week that the Board unanimously agreed to approve all administrative, personnel, and procurement decisions made from January 4, 2012 to August 5, 2013 – the time when President Obama’s recess appointees acted as the NLRB but whose appointments were held to be unconstitutional in Noel Canning. Following this lead, three regional directors whose appointments were ratified by the Board then ratified their own prior actions – and these decisions generate actual administrative litigation, such as representation and unfair labor practice cases. The ratifications appear to affect only internal matters – not final adjudication or regulatory decisions.
► The general press has overstated the result. The NLRB does not appear to have “ratified” any final agency action upon which rights and obligations depend – and are subject to judicial review. Final agency actions remain on the NLRB agenda, and the application of the law to the NLRB’s 19-month hiatus remains quite unclear. Reliance on this “ratification” comes at substantial and ongoing risk.
FCC Open Internet / Fast Lane Comments: The FCC announced in a blog post that it was releasing 1.1 million public comments received on its proposal rule in an XML format (six files totaling over 1.4 gigabytes), an addition to their widely criticized electronic filing system. The FCC believes that it is providing capacity for the public to review the comments and further comment on the proposed rule before the September 10, 2014, close of public comments.
► The FCC’s XML files, unfortunately, fail to resolve any of the problems apparent with the FCC’s idiosyncratic electronic filing system. Not only is technical expertise required to manage the raw XML files, but the files themselves require substantial download time – if they do not crash (they did). The FCC’s attempt to be more transparent fails as miserably as their current system and illustrates their lack of understanding that the “public” means more than a tranche of regulated parties and tech wonks. This may be beating an old drum, but while Regulations.gov may have its limitations, it is far better than the FCC’s proof that it is incapable of managing a significant internet based data system – let alone regulating the internet. Before the FCC attempts to adopt a final rule, it should put its own house to order and migrate its public comment process to Regulations.gov.
Attorney General Habeas Corpus Certifications: The United States District Court for the Northern District of California entered partial summary judgment for the plaintiffs in Habeas Corpus Resource Center v. United States Department of Justice, N.D. Cal. No. 13-cv- 4517 CW (filed August 7, 2014). In this instance, the Antiterrorism and Effective Death Penalty Act (AEDPA) provides special procedures (more favorable to the State) for Federal habeas corpus review of cases brought by indigent prisoners in State custody who are subject to a capital sentence, if the Attorney General certifies that the State has established mechanisms for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings, and as providing standards of competency for the appointment of counsel in these proceedings. The court found that the Attorney General’s second edition of rules for certifying State right to counsel procedures in habeas corpus cases were deficient under the Administrative Procedure Act (APA) because:
- the certification of a State procedures is itself a rule effecting a broad class of individuals (not just the State) and subject to APA procedural requirements, and
- the Attorney General’s rules provide no substantive criteria for determining whether the State procedures merit certification.
The statutory authorization for the rules provides that certified counsel procedures will be “fast-tracked” in the federal courts, a point that opponents of capital punishment find loathsome because it may result in an end to litigation – and the defendant.
► The rules have been litigated several times and will be litigated again after the Attorney General adopts revised rules. The effect of the ruling is that the Attorney General must establish more concrete criteria for the measurement of whether a State procedure complies with the requirements of the underlying act and must then apply APA rulemaking procedures to each State request for certification. The two points appear counterintuitive – rules establish criteria for adjudication, not rulemaking, while rulemaking invokes much broader policy discretion.
This may be one of those cases where an appeal will not be worthwhile because the Court of Appeals applies its own broadest discretion of any court to habeas cases. The certified procedures are likely to become as Balkanized as the combination of circuit precedent to individual State process – a criteria rule for approving individualized State-specific rules in those States using capital punishment that seek to benefit from AEDPA.