[Editor's Note: This week we have the conclusion of this Colloquy Essay; the first section was published here last week. A pdf of the full essay can be downloaded here, and a full version in html form is available here.]
II. Ramped Up Review of Rulemaking Denials
A second aspect of Massachusetts that we predict will likely have long-term implications for administrative law involves the Court’s willingness to thoroughly scrutinize the reasons that the EPA offered for denying the petition to regulate greenhouse gases. The D.C. Circuit (which is by far the most important court in the country when it comes to shaping administrative law) established years ago that courts may review inaction in the rulemaking context—albeit only through a highly deferential and very narrow version of “arbitrary and capricious” review. The D.C. Circuit has explained that constrained review, rather than searching review, is appropriate because the decision whether to engage in rulemaking boils down to a legislative judgment that may turn on a variety of policy considerations ill-suited to judicial review, such as resource allocation concerns.
Despite the D.C. Circuit’s well-settled views on the topic, the Supreme Court prior to Massachusetts had never explicitly weighed in on whether an agency’s denial of a rulemaking petition is subject to review, and if so, what standard of review should apply. The Supreme Court’s pronouncements on the topic in Massachusetts accordingly merit attention. In a nutshell, the Court—following the lead of the D.C. Circuit—declared that refusals to promulgate rules are susceptible to judicial review but that such review is limited and very deferential.