Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere With Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?

Abstract

This article reports the results of an examination of the effects of a decade's worth of D.C. Circuit remands of informal rules under the doctrine. The research identified 71 such remands. Of those, 34 are characterized for a variety of reasons as having essentially no impact on the agency's ability to achieve its goals through the informal rulemaking process. The reasons include the court's explicit refusal to vacate the rule, the court's willingness to delay imposition of the mandate until the agency had recovered, and the insignificant nature of the remand itself. The author examined the aftermath of the remaining 37 remands to determine whether and to what extent the agency was able to recover. The results show that agencies usually succeed in achieving their regulatory goals through informal rulemaking. The author argues that these results challenge the ossification critique of hard look review, at least to the extent that the critique asserts that hard look review significantly interferes with agency pursuit of regulatory goals through informal rulemaking. He suggests that the real story of agency reliance upon informal rulemaking is one of substantial success despite hard look review, and that we should consider returning to a cooperative partnership model to characterize the agency-court relationship with respect to arbitrary and capricious review of agency rules.