Commentary on EPA v. EME Homer has understandably focused on the Court’s decision to uphold a major EPA regulation, as well as on the now-corrected factual error in Justice Scalia’s dissent. But in this post, I’d like to draw attention to Homer‘s jurisdictional holding, which is of some consequence for administrative law.
Homer involved an interstate pollution regulation pursuant to the Clean Air Act. Before the Court could reach the merits, however, it had to determine whether it had jurisdiction over the challengers’ argument that EPA had exceeded its statutory authority. The Act provides that “[o]nly an objection … raised with reasonable specificity during the period for public comment … may be raised during judicial review.” In general, this requirement (which I’ll call the “preservation rule”) makes a lot of sense: if the regulated industry doesn’t bring a problem to the agency’s attention, then it is estopped from springing its objection on the agency after the rulemaking is concluded. The DC Circuit dissent (which was largely vindicated in the Court) advanced this point very forcefully, arguing that industry had not asserted its statutory argument “with reasonable specificity.”
Yet the Supreme Court was unanimous that the statutory preservation rule posed no obstacle to judicial review, even if the industry hadn’t complied with it. The Court reached this conclusion in a few steps. First, it held that the preservation rule wasn’t jurisdictional at all, but instead only defined the “procedural obligations” of parties. Second, the Court held that, in the DC Circuit, EPA hadn’t “unequivocally” pressed the preservation rule. Finally, the Court noted it was “mindful of the importance of the issues” that the challengers had raised. In essence, the Court held that the preservation rule could be dispensed with on prudential grounds, at least when it had arguably been forfeited by the agency. This conclusion is a bit odd on its face, since it required a finding of quasi-forfeiture in the DC Circuit, even though that court had ruled on (and found) preservation.
Homer‘s interpretation of the preservation rule is important (as such administrative/jurisdictional holdings go), but the Court should have gone a bit further. For a statutory-authority claim to prevail, the agency must have run afoul of Chevron by transgressing a clear congressional command. That is the kind of thing that an agency should be on guard against, whether or not private parties have given it notice. And the consequences of a clear statutory violation will often be quite significant, including for regulated parties who may not have existed at the time of the rulemaking. So instead of invoking quasi-forfeiture, Homer should have held that, in general, the preservation rule should not prevent consideration of whether agency rules are ultra vires.