Boston University School of Law

Reprocessing Vermont Yankee
Gary Lawson

Jack Beermann

Boston University School of Law Working Paper 06-25

Abstract

In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), the Supreme Court unanimously and stridently chastised the D.C. Circuit for forcing the Nuclear Regulatory Commission to employ procedures such as discovery and cross-examination in a notice-and-comment rulemaking when no organic statute, regulation, or constitutional provision required it. Vermont Yankee is almost universally regarded as one of the most important administrative law decisions issued by the Supreme Court. For the past three decades, various scholars, most notably Paul Verkuil and Richard Pierce, have been anticipating, and urging, a “Vermont Yankee II,” in which the Court would similarly invalidate other administrative law doctrines. These prior calls for a Vermont Yankee II were not actually attempts to extend the reasoning and holding of Vermont Yankee. Rather Vermont Yankee was employed as a broad symbol - a metaphor of sorts - for Supreme Court intervention to reign in undue lower-court interference with agency discretion and autonomy. There are a significant number of important administrative law doctrines that seem to us to fly squarely in the face of all but the most unreasonably narrow understandings of the Vermont Yankee decision. These doctrines, ranging from the prohibitions on agency ex parte contacts and prejudgment in rulemakings to the expanded modern conception of the notice of proposed rulemaking, are all ripe for reconsideration. In this paper, after setting out the Vermont Yankee decision, we examine previous calls for a “Vermont Yankee II” and explain, in light of what we characterize as the “natural reading” of Vermont Yankee why the regulation of ex parte contacts and agency prejudgment in rulemakings, and mainstream applications of the APA's notice requirements violate the holding of Vermont Yankee as properly understood, as well as the principles and policies underlying the decision. Rejecting these doctrines is thus the appropriate target for a Vermont Yankee II.


Keywords: rulemaking, administrative law, Vermont Yankee, judicial review

 

 

Size: 508 KB
Est. download time @ 28.8K: 18 seconds

Adobe Acrobat Reader v3.01 or greater is required to view this paper.
To obtain a free copy, click the button below

Jack Beermann Contact Information

Email: beermann@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215

Phone: (617) 353-2577 (office)

Fax: (617) 353-3077 (office)

Gary Lawson Contact Information

Email: glawson@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215

Phone: (617) 353-3812 (office)

Fax: (617) 353-3077 (office)

This draft can be also found at the link below:

SOCIAL SCIENCE RESEARCH NETWORK