The Tailoring Rule: Mending the Conflict between Plain Text and Agency Resource Constraints
39 Pages Posted: 18 Jul 2011 Last revised: 4 Feb 2012
Date Written: July 14, 2011
Abstract
In 2010, the Environmental Protection Agency (EPA) promulgated the Tailoring Rule. The Rule “tailors” the numeric triggers for permitting requirements in the Clean Air Act by revising the numbers upward by several orders of magnitude. EPA argued that doing so was necessary to avoid the impossible administrative burden that would result from having to carry out the plain text of the Act as applied to greenhouse gases. At first glance, the Tailoring Rule seems to be a classic case of an agency exceeding its authority and subverting congressional intent. Upon further examination, it becomes clear that EPA is grappling with an important issue that current administrative law doctrine fails to adequately address: What should an agency do when it does not have the resources to carry out all of its required duties? This Note argues that courts should use the rationale of administrative necessity to allow agencies to openly demonstrate that it would be impossible to fully carry out their nondiscretionary statutory duties. Upon that demonstration, courts should allow agencies to promulgate regulations that propose a solution to that impossibility.
Keywords: Tailoring Rule, greenhouse gases, administrative necessity, EPA, climate change, administrative law, resource constraints, plain text
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