Last week, the 9th Circuit Court of Appeals affirmed a District Court ruling requiring the Department of Energy to publish in the Federal Register four rules finalized by the Obama administration, but not previously published.
The Trump administration DOE tried to take advantage of DOE’s “error-correction rule”, which gives DOE time to fix mistakes in its rules before they are published in the Federal Register.
The problem with DOE’s argument is that the error-correction rule is clear that error correction is a ministerial task. The rule explicitly states that, whether: (1) no corrections are suggested; (2) corrections are suggested but rejected; or (3) corrections are suggested and accepted, DOE “will” publish the rule in the Federal Register. The Court of Appeals, like the District Court, found the use of “will” to be mandatory.
The case is pretty much just another judicial back of the hand to this Administration’s feckless efforts to roll back regulations just for the fun of it. I note it here in part because the Court specifically stated that “the absence of genuine ambiguity in the rule’s meaning precludes us from deferring to DOE’s contrary interpretation,” citing to the Supreme Court’s recent decision in Kisor v. Wilkie, in which SCOTUS upheld, but narrowed, Auer deference.
I’ve often argued that conservative skepticism about Chevron and Auer stemmed more from a view that regulatory agencies tend to be expansive than from any principled approach to separation of powers issues. One thinks that they might have wished that the Court had granted DOE a little more deference here. Can you say “hoist on one’s own petard?”