It is not unusual for a developing rule or other agency action to be something of a moving target, with an agency responding to comments in a way that leaves some in the regulated community complaining that they did not receive the required fair opportunity to comment before the rule or agency action became final. The DC Circuit’s opinion in Chesapeake Action Network v EPA 2020 WL12222690 (March 13, 2020) ordered reconsideration of such a rule and provided guidelines for those challenging rules based on the agency’s failure to make important information available during the public comment period.

The case arose out of a challenge to a rule promulgated by United States Environmental Protection Agency (EPA) in 2014 exempting coal and oil-burning power plant utility boiler “startup” periods from certain limits on hazardous air pollutants. This rule imposed work practice standards for this “startup” period. The Clean Air Act required the maximum degree of reduction in emissions that EPA deemed achievable and allowed work practice standards in place of numerical limits only where numerical limits were deemed to be not achievable. EPA initially proposed a numerical standard during the startup period. 77 Fed. Reg. 9306. Based on comments made during the comment period, EPA replaced the numerical standard with work practice standards in the final rule. In response to petitions for reconsideration, EPA reopened the comment period for comments on the nature of the work practice standards. 78 Fed. Reg. 3801. After review of the comments from industry and environmental groups, EPA issued a final rule that for the first time included alternative definitions of end of the “startup” period and stated that this procedure would be applicable beyond the energy generation industry. Petitioners sought reconsideration or judicial review, arguing that they did not have an opportunity to comment on the new provisions.

42 USC 7607(d)(7)(B) provides that one may seek judicial review of a rule only based on objections to the rule made during the public comment period. However, one may raise new issues:

  • “If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within such time or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule”

Petitioners raised two objections: (1) that the final rule introduced concepts that were not in the proposal and could not have been anticipated and (2) that EPA’s proposal did not include critical elements of the reasoning underlying the proposal. Petitioners argued that it was impracticable to raise its objections during the comment period and that the objections arose after the comment. The District Court denied the request for reconsideration or judicial review. The Court of Appeals reversed, holding that the objections met the first prong of the standard – impracticable – and not the second prong – arising after. Because on its face, it appears that it is always impracticable to raise objections that arise after the close of the comment period, the Court explained the difference between the two.

The first prong is met, the Court explained, when the final rule is not a logical outgrowth of the proposed rule. A final rule is a logical outgrowth “if interested parties should have anticipated that the change was possible.” A final rule is not a logical outgrowth “if interested parties would have to divine the agency’s unspoken thoughts.”

EPA argued that the final rule was a natural outgrowth of the proposal because the petitioners had commented on the lack of analysis of “best performing sources,” a key concept introduced in the final rule. The Court rejected that, noting that it places an “unreasonable burden” on commenters, to make them anticipate “every conceivable course correction” regarding how EPA would cure this missing component. Thus, even if the concept of “best performing sources” was a natural outgrowth, how EPA would apply that concept was not a natural outgrowth of the proposal and reconsideration or judicial review was warranted.

Regarding the petitioners claim that key elements of EPA’s reasoning did not become clear until the final rule, EPA argued that the inability to measure emissions in the “startup” period was a key premise underlying the proposal. The court’s message to EPA, then, was that they should have said so, stating that “commenters do not have to be mind readers.”

Anyone practicing before an agency has confronted the issue of attempting to determine how different from the proposal a final action must be to justify a new comment period. The DC Circuit in Chesapeake Climate Action tried to balance the agency’s need for finality (if every change required a new comment period, there would be no final action) against the commenter’s right to comment. In so doing, the court included both language and reasoning that will be helpful to future commenters.

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