What Twombly and Mead Have in Common

By Amy J. Wildermuth[*]

[download pdf]

Introduction

The Supreme Court’s recent opinion in Bell Atlantic Corp. v. Twombly[1] has already had enormous implications for pleading requirements under the Federal Rules of Civil Procedure. As of early April 2008—less than a year after it was issued—Twombly had been cited in almost 5,000 cases.[2]  It also was an immediate—and continuing—source of much academic debate.[3]

I cannot help but notice a distinct parallel between Twombly and another opinion authored by Justice Souter, United States v. Mead.[4]  At first blush, these cases have little in common outside of their author: One was an antitrust dispute about what factual evidence must exist and be pled to defeat a Rule 12 motion on an alleged “parallel conduct” violation of Section 1 of the Sherman Act; the other was an administrative law case about the deference owed to agencies’ statutory interpretations that are not subjected to Administrative Procedure Act (APA) required process.  What brings this odd couple together?

The most obvious shared trait is that the Court appears to have fundamentally altered procedural law in both decisions.  That alone, however, does not mean much.  Changing the law, even significantly, is the Court’s prerogative.  The common denominator instead is the confusion one is left with after parsing both Twombly and Mead. It is one thing to know that the law has changed when the change—the new order, the new rule, the new way of operating—is clear.  But these opinions offer no straightforward answers. Rather, on key issues in both cases, the court offers a similar formula of circular directions: it begins with a fairly clear description of the general legal test to apply, but then proceeds to detail exceptions or additions that have the potential to swallow the general rule.

These two cases are different, however, in one important way: the Court’s ability to correct the confusion its decisions engender.  Even if the Court were interested in revisiting the question of the proper deference to afford agency interpretations, it would need to wait for a good vehicle to address the many uncertainties Mead has generated.  The confusion with respect to Twombly, however, can disappear quickly.  Acting under its powers to revise the Federal Rules of Civil Procedure, the Court could revise either Rule 8[5] or Rule 9[6] and thus immediately end the speculation regarding what Twombly means.

 

Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global Warming (Part II)

By Kathryn A. Watts[*] and Amy J. Wildermuth[**]

[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.[68]  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.[69]

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.[70]  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.[71]

Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global Warming

By Kathryn A. Watts[*] and Amy J. Wildermuth[**]

[Editor's Note:  We are proud to present this Colloquy Essay in two parts.  The first part is published here today, and the second part is available here.  A combined version of the two parts is available in html and in pdf.] 

After the Supreme Court handed down its split 5–4 decision in Massachusetts v. EPA,[1] various media outlets trumpeted the significance of the case.  As one example, the Chicago Tribune proclaimed: “EPA must regulate greenhouse gases.”[2]  The problem, of course, is that the Court said no such thing.  To be sure, the Court determined that greenhouses gases were “air pollutants” within the meaning of the Clean Air Act (“CAA”).[3]  But the Court’s opinion did not order the EPA to regulate with respect to climate change.  Rather, the ruling remands the case to allow the agency to reconsider its denial of a petition to regulate the emissions of four pollutants associated with climate change from mobile sources under Section 202 of the CAA.[4]  The ruling, in other words, leaves the EPA free to decide not to regulate, so long as it provides adequate justification for its decision.  This means that what the media has touted as the “global warming” case may not actually lead to the regulation of global warming at all under the current CAA.[5]

So wherein lies the true significance of the case?  We believe that the long-term significance of the case is likely to be the opinion’s impact on two doctrinal areas of the law:  (1) the standing of states; and (2) the standard of review applied to denials of petitions for rulemaking.  First, although we have some questions about the Court’s reasoning, we are encouraged to see the beginning of a framework for evaluating state standing based on the interest of the state in the litigation.  Second, with respect to judicial review of agency inaction in the rulemaking context, the Court’s decision breaks new ground by not only confirming the reviewability of an agency’s denial of a rulemaking petition but also by closely scrutinizing the reasons that the EPA offered for its decision to decline to regulate.