THE APA AS AN ENVIRONMENTAL LAW.

• Author: Stansberry, Ross A.

1. INTRODUCTION 806 II. APA REQUIREMENTS FOR POLICY REVERSALS 809 A. Inadequate Explanation: State Farm 810 B. Adequate Explanation: Fox 814 III. PROVIDING A REASONED EXPLANATION IN ENVIRONMENTAL POLICY 817 REVERSALS A. The Bush Administration: The Tongass Exemption 818 B. Trump Administration 822 1. Arbitrary and Capricious Delay or Suspension 822 a. The Chemical Disaster Rule 822 b. The Methane Waste Prevention Rule 825 2. Arbitrary and Capricious Reversal: The Keystone XL 828 Pipeline IV. STRATEGIES FOR RESILIENT DECISION MAKING AND CHALLENGING 831 REVERSALS A. Making Enduring Decisions 831 B. Reversing Course 833 C. Challenging Policy Reversals 835 V. CONCLUSION 836 I. INTRODUCTION

   In a familiar pendulum swing between changing administrations, (1) the Trump Administration took office promising to roll back environmental regulatory standards promulgated under the Obama Administration. (2) The Trump Administration has sought to fulfill this promise by setting its sights on more than eighty environmental policies and regulations for rollback. (3) The judicial branch has enjoined some of these regulatory rollbacks and permit decision reversals because of the Trump Administration's failure to comply with the Administrative Procedure Act (4) (APA). Courts have found the Administration violated the APA's prohibition on arbitrary and capricious agency action when suspending the 2017 Chemical Disaster Rule, (5) suspending the 2016 Methane Waste Prevention Rule, (6) and reversing course in the State Department's 2017 decision to approve the Keystone XL Pipeline permit. (7) These judicial hang-ups demonstrate the challenges arbitrary and capricious review under the APA imposes on administrations seeking to suspend or reverse administrative decisions of their predecessors--particularly those administrations pursuing an accelerated deregulatory agenda.

   This is not the first time courts have stymied or even stopped portions of an administration's agenda because of its failure to comply with the APA. The Bush Administration attempted a similarly ambitious deregulatory agenda when it took office after the Clinton Administration. (8) Like the present deregulatory efforts, the Bush Administration faced trouble when it sought to delay or roll back the previous Administration's environmental regulations, in part because the Bush Administration failed to follow the APA's procedural requirements or meet the substantive requirements of the arbitrary and capricious standard. (9) Given the current state of political polarization on environmental issues (10) and the frequent occurrence of "midnight regulation," (11) administrations will continue to face problem of how to effectively undo the work of their predecessors.

   Generally, deregulatory administrations have run into two kinds of problems of APA non-compliance: either 1) the suspensions of a previous administration's rules violated APA requirement to provide adequate notice and comment, (12) or 2) when reversing the rule of a previous administration, the agency under the new administration failed to provide a "reasoned analysis" to justify its reversal. (13) This Comment focuses on the reasoned analysis requirement, although the notice and comment requirement has also proven to be troublesome for the Trump Administration. (14)

   The Supreme Court elaborated on the "reasoned analysis" requirement in the 1983 case of Motor Vehicle Manufacturer's Association of the U.S., Inc. v. State Farm Mutual Auto Insurance Co (15) (State Farm) and the 2009 case of Federal Communications Commission v. Fox Television Stations, Inc. (16) (Fox). In its review for reasonable analysis, the Court has considered whether the agency displayed awareness that it is changing position, showed that the new policy is permissible under the statute, believed the new policy is better, and provided good reasons for the new policy that include "a reasoned explanation ... for disregarding facts and circumstances that underlay or were engendered by the prior policy." (17) While what satisfies the requirement for a reasoned analysis is arguably elusive, (18) this Comment explains the Court's focus in the above-cited cases and explores these issues in environmental cases originating in administrations' changing environmental (de)regulatory priorities.

   This Comment analyzes the role of the APA in environmental deregulation, focusing on cases where administrations have failed the APA's notice and comment or reasoned analysis requirements and presents some lessons learned from these failures. The Comment uses failure to meet the reasoned analysis requirement to provide lessons for agencies to create resilient policies or successfully reverse the efforts of their predecessors. Part I begins by providing background on the back-and-forth policy changes between administrations, introducing the problems those administrations faced attempting to reverse the regulations and policies of their predecessors. Part II explains the APA notice and comment requirements and explores the State Farm and Fox cases establishing the APA's reasoned analysis requirement. Part III analyzes issues of APA noncompliance faced by the current Trump Administration and draws some comparisons to similar issues faced by the Bush Administration. Part IV provides lessons for administrations seeking to create resilient decisions and administrations seeking to undo the work of their predecessors, and provides strategies for potential litigants against agency policy reversal. The APA requires agencies to provide a reasoned analysis by addressing any inconsistent factual findings central to their decisions and take consistent positions within their justifications. This Comment concludes that agencies seeking to effectively reverse policy must address the economic and environmental conclusions of the prior administration's policy, and that current administrations can use the APA's reasoned explanation requirement to make enduring decisions by forcing a future administration to address extensive factual findings.

2. APA REQUIREMENTS FOR POLICY REVERSALS

   Section 706 of the APA provides the statutory basis for courts to review an agency decision for a reasoned explanation. (19) The section provides that the "reviewing court shall... hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (20) The Supreme Court interpreted this language as requiring agencies to give adequate reasons for their decisions beginning with Citizens to Preserve Overton Park, Inc. v. Volpe (21) (Overton Park) in 1971. (22) Although Overton Park involved an agency's informal adjudication, the circuit courts quickly applied its requirement for adequate reasons to informal rulemaking as well. (23) In 1983, the Court confirmed the reasoned explanation requirement in its seminal decision in State Farm in the context of an agency's policy reversal. (24) A plurality of the Court clarified State Farm in the context of agency policy reversals in Fox in 2009 by stating that an agency may not necessarily need to give more explanation than is required in the first instance, but must address the conclusions underlying its previous position. (25) This Part explains State Farm and Fox and their significance for agencies seeking to justify policy reversals.

   1. Inadequate Explanation: State Farm

      In State Farm, the Court addressed whether an agency acted arbitrarily and capriciously when it revoked a previous administration's requirement that new motor vehicles produced after 1982 be equipped with passive restraints--airbags or automatic seatbelts. (26) According to the Court, the regulation at issue bore "a complex and convoluted history." (27) In the National Traffic and Motor Vehicle Safety Act of 1966 (28) (Safety Act), Congress directed the National Highway Traffic Safety Administration (NHTSA) to issue standards for motor vehicle safety. (29) The Safety Act required the NHTSA to consider 1) relevant safety data; 2) whether the standards were "reasonable, practicable and appropriate;" and 3) the extent to which the standard would carry out the Safety Act's purpose to reduce the deaths and injuries resulting from traffic accidents. (30)

      The NHTSA concluded use of passive restraint devices could effectively meet the purpose of the Safety Act. (31) The standard was formally proposed in 1969 and, after some amendments and extensions, the Jimmy Carter Administration issued a new regulation in 1977 phasing in passive restraints beginning in 1982 and requiring passive restraints in all vehicles manufactured in 1984. (32) Under the Carter Administration standard, automobile manufacturers could install either airbags or automatic seatbelts. (33) During the phase-in period, the NHTSA stated that use of passive restraint systems would save an estimated 9,000 lives and tens of thousands of serious injuries. (34)

      In 1981, under the newly elected Reagan Administration, the NHTSA reversed course. (35) The NHTSA reopened the rulemaking, issued a one-year delay in applying the standard to large vehicles, and proposed rescission of the entire standard. (36) After notice and comment and public hearings, the NHTSA rescinded the passive restraint requirement. (37) The NHTSA based its decision on the belief that the automatic restraint requirement would no longer produce the significant safety benefits estimated in 1977. (38) The NHTSA reasoned that the automobile industry planned to install automatic seatbelts in 99% of new automobiles and that the majority of those automatic seatbelts could be detached and left that way indefinitely. (39) Thus, reasoned the NHTSA, the effectiveness of airbags would not be realized, and the benefits of automatic belts would not be as effective. (40) Based on the predicted decrease in effectiveness, the NHTSA concluded the requirement was no longer reasonable or...