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Agency Doesn't Need Public Permission to Withdraw Proposed Regulations
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Examining Agency Authority: Mexichem Fluor, Inc. v. EPA - DC Circuit

Alexander Kritikos August 21, 2017
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In a nearly 30 year old Duke Law Journal article, Justice Scalia asked with regard to Chevron deference, “How clear is clear?” Last week in Mexichem Fluor, Inc. v. EPA, Judges Brett Kavanaugh and Robert Wilkins took opposing views on whether section 612 of the Clean Air Act is clear enough to stop at Chevron’s first step. That section provides in part that ozone-depleting substances “shall be replaced by chemicals, product substitutes, or alternative manufacturing processes that reduce overall risks to human health and the environment.”

Despite the EPA’s statements over the years that section 612 doesn’t give the agency authority to require the replacement of non-ozone-depleting substances, that’s just what the EPA did in 2015. After the EPA concluded that hydrofluorocarbons (HFCs) contribute to climate change (but don’t deplete the ozone layer), the agency promulgated a final rule that moved HFCs from the list of safe substitutes to prohibited substitutes.

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D.C. Circuit Strikes Down “Good-Reason” Requirement for Handgun Carry Licenses

Joseph Greenlee July 26, 2017
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After the District of Columbia’s handgun ban was struck down by the Supreme Court in D.C. v. Heller, and its ban on bearing arms was struck down by the District Court in Palmer v. D.C., the District responded by prohibiting all persons from bearing arms unless “the applicant has good reason to fear injury to his or her person or property or has any other proper reason for carrying a pistol.” D.C. Code Ann. § 22-4506(a)-(b).

A “good reason” “at a minimum require[s] a showing of a special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant's life.” § 7-2509.11(1)(A). Living or working in a high-crime area was not enough. D.C. Mun. Regs. tit. 24 § 2333.4.  

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Fannie Mae building

The D.C. Circuit Decision On The “Net Worth Sweep” Was Not A Clean Sweep For The Government

Jason Levine March 29, 2017
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Overlooked by much of the commentary on the D.C. Circuit’s recent decision on the Treasury Department’s “net worth sweep” are the contract claims remanded to the district court. Perry Capital LLC et al. v. Mnuchin et al., No. 14-5243, slip op. at 58-73 (D.C. Cir. Feb. 21, 2017). These claims warrant attention because they may result in sizable damages to investors in Fannie Mae and Freddie Mac securities, despite the dismissal of plaintiffs’ statutory claims for injunctive relief. [Read More]

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Safari International Club v. Jewell: D.C. Circuit Hunts Down Agency’s Procedural Evasions of Judicial Review

Derek Lyons December 14, 2016
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The most remarkable thing about the D.C. Circuit’s recent opinion in Safari International Club v. Jewell is that there was any opinion at all. Its blackletter law holdings on standing, final agency action, and exhaustion are the type often found in unpublished decisions. Yet the case is interesting for two reasons. The first is the glimpse it gives into an agency’s willingness to make borderline frivolous procedural arguments to evade substantive judicial review. And the second is the unqualified rejection a panel of judges not known for their skepticism of the administrative state gave to them. As a result, the case is simultaneously distressing and refreshing. It is both a reminder of how procedural complexity can empower bureaucrats and of how panel composition is not necessarily outcome‑determinative in administrative law. [Read More]

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Setback for the CFPB in the DC Circuit

Christian Corrigan October 12, 2016
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Yesterday, the U.S. Court of Appeals for the D.C. Circuit delivered a huge blow the Consumer Financial Protection Bureau (CFPB). In a terrific opinion on executive power and individual liberty, Judge Brett Kavanaugh wrote that the CFPB’s status as an independent agency headed by a single director violated Article II of the Constitution.  [Read More]