Rulemaking Petitions in a World Without Deference to Agencies: A New Lease on Life?

Often overlooked in the study and practice of administrative law, rulemaking petitions are means by which interested persons can prompt federal agencies to implement the statutes they administer in particular ways. After the Supreme Court’s 2024 decisions in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), and Ohio v. Environmental Protection Agency, 144 S. Ct. 2040 (2024), rulemaking petitions are about to experience a renaissance—one that could reshape environmental law, should environmental advocates choose to leverage the procedure.

The Administrative Procedure Act (APA) requires each agency in the federal government to “give an interested person the right to petition for the issuance, amendment, or repeal of a rule,” and it further requires agencies to promptly respond to those petitions. 5 U.S.C. § 553(e). Moreover, if an agency denies a petition, that decision is judicially reviewable for arbitrariness, unlike many other agency decisions not to act. See Massachusetts v. EPA, 549 U.S. 497 (2007).

The practical import of rulemaking petitions has been limited by the fact that courts have almost always found agencies’ decisions to deny petitions to be matters of agency discretion when agencies are administering general statutes. See, e.g., Gulf Restoration Network v. McCarthy, 783 F.3d 227, 244 (5th Cir. 2015) (approving of an agency’s denial of a petition and noting that petition denials are subject to a “highly deferential standard of review” that is particularly deferential when the statute giving the agency power is “broadly written” and requires agencies to balance “competing considerations”). Reading these tea leaves, proponents of greater regulation have made little use of rulemaking petitions outside of listing petitions under the federal Endangered Species Act, 16 U.S.C. §§ 1531–1544, preferring instead to operate via other channels of influence to push regulatory agencies into action.

The courts’ practice of endorsing agency discretion regarding petition denials emerged, however, in a world we no longer inhabit—a world with judicial review principles that exuded deference to agencies. In a pair of cases in the Supreme Court’s October 2023 Term, the Court indicated that the era of deference to federal agencies is over. In Loper Bright, the Court formally overruled the Chevron doctrine, which for 40 years had required judges to allow agencies first choice among reasonable interpretations of otherwise ambiguous statutes. And in Ohio v. EPA, the Court signaled a willingness to flyspeck agency action under the APA’s arbitrary and capricious test. Both decisions have been criticized as dangerous for effective regulation because agencies now will face more scrutiny from courts when they elect to take action to protect the environment and natural resources. While these are legitimate concerns, the flipside also is true: these decisions open the door to far greater judicial scrutiny of agency decisions not to act on both legal and policy grounds, and rulemaking petitions can be the procedural vehicle for getting agency failures to regulate in front of the courts, subject to the same level of scrutiny as alleged overregulation.

Environmental advocates would do well to embrace rulemaking petitions even if they have not played a major role in practice before. In doing so, advocates not only can turn the recent and ostensibly anti-regulatory developments in judicial review to their advantage, but also build on headwinds that have been developing in the White House Office of Information and Regulatory Affairs (OIRA) to modernize and systematize petitioning processes in agencies. Petitioning has always had great potential both as a democratic practice, see Maggie McKinley, Petitioning and the Making of the Administrative State, 127 Yale L.J. 1538 (2018), and as a constraint on agency slack, but now it is the procedure’s moment in the sun.

The Environmental Inaction Problem

One need not look very hard to find examples of agencies doing too little to address mounting environmental challenges. The poster child is, of course, climate inaction, although in that domain agencies at least have the excuse that courts have been skeptical of attempts to repurpose legacy environmental statutes for the climate age. See, e.g., West Virginia v. EPA, 597 U.S. 697 (2022) (leveraging the “major questions doctrine” to block the Clean Power Plan). But even beyond climate, environmental and natural resource agencies frequently fail to take protective actions that are well within their statutory authority. For instance, the U.S. Environmental Protection Agency (EPA) refused for 14 years to revoke tolerances for the pesticide chlorpyrifos in response to a 2007 rulemaking petition, even though the EPA itself recognized that the “ill effects” of chlorpyrifos likely made the pesticide “not safe” under the Federal Food, Drug and Cosmetic Act. See League of United Latin Am. Citizens v. Regan, 996 F.3d 673, 678 (9th Cir. 2021). Similarly, the EPA has often dragged its feet on regulation of “forever chemicals” such as PFAS, prompting waves of petitions and lawsuits. See, e.g., Pub. Emps. for Env’t Resp., Lawsuit Targets EPA Inaction on PFOA in Plastic Containers (July 25, 2024).

As even these few examples demonstrate, regulatory inaction is endemic (and, to be clear, it is not exclusively an environmental problem). Such inaction is attributable to many factors, some more understandable than others. Much of it might be the inevitable result of agencies having limited resources to pursue all actions that the statutes they implement technically require. Hence, administrative law has long respected the need for agencies to have discretion in allocating scarce resources. See Eric Biber, The Importance of Resource Allocation in Administrative Law, 60 Admin. L. Rev. 1 (2008). However, at least some of the inaction also is attributable to less public-minded concerns, such as deregulatory agendas pushed on agencies by presidential administrations and industry. Even ostensibly pro-regulatory administrations are not immune to electoral pressures to stifle possible regulatory actions that might provide fodder for political opponents. See Juliet Eilperin, Obama Pulls Back Proposed Smog Standards in Victory for Business, Wash. Post (Sept. 2, 2011).

It can be difficult to sort out whether environmental inaction is a benign symptom of our failure to adequately fund and staff agencies, or instead a more nefarious example of “corrosive capture,” Daniel Carpenter & David A. Moss, Introduction, in Preventing Regulatory Capture: Special Interest Influence and How to Limit It, at 1, 16 (Carpenter & Moss eds., 2014), or of “structural deregulation[.]” Jody Freeman & Sharon Jacobs, Structural Deregulation, 135 Harv. L. Rev. 585 (2021). Even setting aside those difficulties, however, there can be little question that environmental and natural resource agencies err just as often by underimplementing their statutes as they do by overimplementing them. An empirical study, for instance, found that the Department of the Interior failed to respond to 59% of the congressional calls for rulemaking in statutes that it implements. See Jason Webb Yackee & Susan Webb Yackee, From Legislation to Regulation: An Empirical Examination of Agency Responsiveness to Congressional Delegations of Regulatory Authority, 68 Admin. L. Rev. 395, 426 tbl.1 (2016). This lack of responsiveness to clear statutory law is a slow-burning crisis of law and democracy that often escapes attention but is every bit as pressing as agencies occasionally overstepping their authority. As the next section shows, the problem has not been entirely out of the cognizance of administrative law.

Agency Inaction and the Potential Role of Petitions

When agencies take final actions that concretely affect interests in ways that are legally recognized as injuries, it is not difficult to obtain judicial review. It is much harder, but not necessarily impossible, to obtain judicial review of agency failures to act. On the one hand, the APA specifically recognizes that a “failure to act” is a species of “agency action” for which the APA creates a cause of action. See 5 U.S.C. §§ 551(13), 702. Moreover, courts are empowered to “compel agency action unlawfully withheld.” Id. § 706(1). On the other hand, the Supreme Court held in 2004 that a claim alleging a failure to take action and seeking an order compelling such action “can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” See Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) (emphasis in original). This limitation on judicial review of inaction rules out “broad programmatic attack[s]” on agency administration (or nonadministration) of agency programs, and also “rules out judicial direction of even discrete agency action that is not demanded by law,” such as by a deadline. Id. at 64–65.

These overarching limits on judicial review of agency inaction are significant, but their impact is limited by the fact that interested persons can file petitions asking agencies to take specific actions. Petition rights are provided for both in the APA, 5 U.S.C. § 553(e), and in many other statutes and agency regulations. See Jason A. Schwartz & Richard L. Revesz, Petitions for Rulemaking, Final Report to the Administrative Conference of the United States (Nov. 5, 2014). Agencies have a duty to respond to petitions they receive within a reasonable amount of time and can be sued if they unlawfully delay their response. Id. (citing 5 U.S.C. § 706(1)). In effect, petitions can convert a general, and otherwise nonjusticiable, instance of inaction into a discrete agency action—i.e., the denial of or failure to respond to the petition. By preceding a court challenge to agency inaction with a specific ask in a petition, would-be challengers can usually get around Norton’s limitations on inaction review. In certain areas, such as Endangered Species Act listing fights, this is precisely what environmental groups do when they petition for the listing of a species, and limits on administrative review of inaction have largely been rendered irrelevant by this procedural device.

If this strategy sounds too good to be true, that’s because it does not say anything about the applicable standard of review when courts review agency denials of petitions. As it turns out, courts have typically deferred to agency denials of petitions, making this workaround a false hope for would-be challengers of agency inaction.

Until 2007, it was not entirely clear that courts even were authorized to review petition denials. In Massachusetts v. EPA, the Supreme Court stepped in to clarify that denials of rulemaking petitions were, in fact, reviewable, rejecting the government’s arguments for a presumption of unreviewability similar to the one that applies to individual nonenforcement decisions. 549 U.S. at 527 (citing Heckler v. Chaney, 470 U.S. 821 (1985)). According to the Court, denials of rulemaking petitions, unlike nonenforcement decisions, “are less frequent, more apt to involve legal as opposed to factual analysis, and subject to special formalities, including a public explanation.” Id. Essentially, the Court concluded that there is “law to apply” to decisions denying rulemaking petitions, such that review is not “committed to agency discretion by law.” See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (citing 5 U.S.C. § 701(a)(2)).

Even though review is available to examine whether the agency violated the statute through its inaction or acted arbitrarily in defending its denial, “such review is ‘extremely limited’ and ‘highly deferential.’” Massachusetts, 549 U.S. at 527 (internal citations omitted). Implicitly, the Court justified this standard of review by noting that “an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities.” Id. (citing Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842–45 (1984)). It further complicated the matter by proceeding to engage in review of the EPA’s denial of a petition asking for regulation of greenhouse gas emissions from automobiles quite nondeferentially. See Amy J. Wildermuth & Kathryn A. Watts, Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global Warming, 102 Nw. U. L. Rev. 1029, 1040–41 (2007) (noting that the Court’s “actual review of the EPA’s reasons for declining to regulate” was a “far cry from what one would expect of ‘highly deferential’ review”). Specifically, the Court held that the EPA was wrong to conclude that it lacked authority to regulate greenhouse gas emissions as an “air pollutant” under the Clean Air Act, and that the “alternative basis” for its denial—“that even if it does have statutory authority to regulate greenhouse gases, it would be unwise to do so at this time”—“rests on reasoning divorced from the statutory text.” Massachusetts, 549 U.S. at 528–33. Commentators mused that the Supreme Court might have implicitly intended to distinguish major petitions from normal petitions, applying a more stringent form of review to the former. See Wildermuth & Watts, supra, at 1043 (“[T]here are petitions—and then there are petitions.”).

Notwithstanding these mixed signals from the Court, the lower courts appear to have gotten the memo. Most lower court cases reviewing challenges to denials of rulemaking petitions (often in the environmental space) have emphasized the “highly deferential” language of Massachusetts v. EPA rather than mimicked its style of review, and have therefore declined to vacate agency denials. In Gulf Restoration Network v. McCarty, the U.S. Court of Appeals for the Fifth Circuit (a court notoriously skeptical of agencies) upheld the EPA’s denial of a petition asking the agency to make a necessity finding under the Clean Water Act, holding that the “agency’s burden is slight” and requires only “some reasonable explanation as to why it cannot or will not exercise its discretion.” 783 F.3d 227, 243 (5th Cir. 2015). Likewise, in Center for Food Safety v. Perdue, the U.S. District Court for the Northern District of California upheld the USDA’s denial of a petition requesting prohibitions on organic certification for hydroponic foods despite calling the agency’s readings of the relevant statute “strained.” 527 F. Supp. 3d 1130 (N.D. Cal. 2021). The exceptions tend to prove the rule, and even those successes are hardly rousing in context. For instance, although federal courts ultimately forced EPA to act on a petition to ban cholorpyrifos, that judicial intervention continues to be re-litigated 14 years after the petition was initially submitted. See Red River Valley Sugarbeet Growers Ass’n v. Regan, 85 F.4th 881 (8th Cir. 2023). It is hardly surprising, then, that petitioning activity apparently has not surged in the years since Massachusetts, although a lack of systematic data on petitioning makes it difficult to be sure.

Rulemaking Petitions in an Era of Independent Judgment and Hard Look Review

If nothing else, Loper Bright replaced Chevron deference with an “independent judgment” standard—courts, rather than agencies, resolve all statutory interpretation questions, even where statutory language might be difficult to interpret and fairly debatable. See 144 S. Ct. at 2262. As the Court in Loper Bright explained, “statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning.” Id. at 2266. Likewise, Ohio v. EPA seems to signal a mood of “hard look review” under the arbitrary and capricious test. 144 S. Ct. 2040; see Daniel Deacon, Ohio v. EPA and the Future of APA Arbitrariness Review, Yale J. on Reg.: Notice & Comment (June 27, 2024). Together, these opinions mark a potential sharp turn towards judicial supremacy both in terms of elucidating the meaning of statutes and in policing agency exercises of policy discretion for reasonableness. To be sure, it is not entirely clear that these opinions will reverberate through the judiciary in a way that fundamentally transforms administrative law practice. See Cary Coglianese & Daniel E. Walters, The Great Unsettling: Administrative Governance After Loper Bright, Admin. L. Rev. (forthcoming 2025). For example, the new “independent judgment” standard from Loper Bright is qualified by the Court’s endorsement of several offramps, including one for express delegations of discretion. See 144 S. Ct. at 2263. If what follows is closer to the maximalist version of the Court’s vision in Loper Bright and Ohio v. EPA, however, then it is difficult to see how these opinions will not revolutionize petitioning—both the incentives of potential petitioners filing them in the first place and the courts’ standards of review when petitioners challenge agency denials of their petitions.

To start, it is clear from the case law that courts deferred to agency denials of petitions for the same reasons that the courts used to defer more generally to agency actions. Indeed, Massachusetts v. EPA explicitly tethered its discussion of the standard of review for petition denial cases to the Chevron decision, see 549 U.S. at 527, and by extension to Chevron’s theory that statutes’ meanings do sometimes run out and that courts have no place in displacing agency discretion to choose between plausible meanings of statutes. Under Massachusetts, an agency could argue that the statute was ambiguous and that it would adopt the meaning that did not require any action in response to a petition, and courts would have to honor that denial so long as the agency’s interpretation was reasonable (even if not preferred). See, e.g., Ctr. for Food Safety, 527 F. Supp. 3d at 1142 (upholding a denial of a petition because USDA offered an “equally persuasive interpretation” of relevant statutes as the petitioners). Under Loper Bright’s “single, best meaning” theory, however, this reasoning will no longer suffice when petitioners properly frame a petition around an argument that the statute requires agency action—and that the petitioned action best implements the statute’s meaning. Agencies will have to offer their own interpretation of the statute and whether it requires action, and courts will likewise have to review that interpretation to independently determine whether the agency’s interpretation is consistent with the statute.

Of course, one of the traditional reasons for deferring to petition denials was that agencies are generally in a better position to decide how to allocate scarce resources and should therefore have the flexibility to interpret ambiguous statutes to permit inaction. It is not clear, though, how resource allocation concerns could justify a departure from the “single, best meaning” of the statute simply because of the posture of the case (i.e., where courts are being asked to compel, rather than review, agency action). There are policy concerns about resource allocation implicated by more traditional review as well—in both cases, the statutory interpretation questions can be, and under Loper Bright should be, neatly separated from all of the policy considerations that might have justified deference despite the language of a statute. See also Daniel E. Walters, Symmetry’s Mandate: Constraining the Politicization of American Administrative Law, 119 Mich. L. Rev. 455, 506–07 (2020) (explaining why resource allocation policy concerns are not unique to challenges asking courts to compel agency action). It should therefore be possible under Loper Bright’s independent judgment standard for environmental interests both to file more petitions arguing that statutes require action and to prevail more often in challenging any denials of those petitions in court.

Even when the only possible argument is that an agency abused its discretion, perhaps because the statute involves an explicit delegation of discretion to an agency, Ohio v. EPA can step in to heighten the stringency of review. Massachusetts v. EPA was decided against a backdrop of “thin rationality review” with the potential for “hard look” review in exceptional cases. Jacob Gersen & Adrian Vermeule, Thin Rationality Review, 114 Mich. L. Rev. 1355 (2016). But Ohio v. EPA was no exceptional case, and it has plausibly been read as indicating a general tightening of review under the arbitrary and capricious test. In the absence of any theory about why the petitioning context deserves categorically different treatment, this tightening of review would seem to justify more probing judicial evaluation of the agency’s policy reasons for declining to act on petitions. How much more stringent this review might be remains to be seen.

Conclusion

In sum, the Court has been remaking whole swaths of settled administrative law doctrine, and those changes—taken to their logical extension—seem to forecast a judicial duty to abdicate far fewer questions about petitions to agencies than under the more deferential version of administrative law under Chevron. To be clear, this may be a second-best world compared to one where agencies enjoyed substantial discretion in interpreting ambiguous statutes and making policy judgments. See Walters, supra, at 515–16 (arguing that matching Chevron deference with deference to petition responses was a natural, and symmetrical, equilibrium, and suggesting it would be unlikely that the Court would discard Chevron deference in part because of the effect it would have on judicial review of petition denials). Nevertheless, it is the world that the Supreme Court has created. If petitioners are willing to do the work, the courthouse doors are open, and it will not be surprising if environmental interest groups and other litigants seize upon the petition process to walk through those doors and prompt environmental regulation.