March 01, 2016

Overreach in Agency Rulemaking: Judicial Pushback?

Lisa A. Decker

Challenges to agency-issued rules are starting to gain traction in the courts. This is an encouraging development in those instances where agencies are promulgating rules that go past the authority granted to them under existing laws. Typically, agencies issue rules and regulations to enforce environmental requirements and statutes. Although rules that are promulgated under the Administrative Procedure Act (APA) undergo a public comment process, agencies often have broad discretion in constructing their rules because agency action enjoys considerable deference. Some argue that agencies have become bolder, issuing rules that are extremely broad in their coverage—in some instances to the point of overreaching their authority and expertise.

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