Q: "Do you know of any case in which we have halted a proposed rulemaking?" A: "I do not, your Honor."

|The Volokh Conspiracy |

Yesterday the D.C. Circuit heard a challenge by states and coal companies to proposed EPA rules that have not yet been completed. A huge problem for this challenge is that these regulations have merely been proposed, and by statute courts review only final agency actions. This is not an esoteric point. It was a central argument for the government in its brief, based on lots of precedents. But don't take my word for it. The first question to the petitioner's counsel (West Virginia Solicitor General Elbert Lin) yesterday, about 30 seconds into the oral argument was as follows (transcription my own, from the audio of the oral argument): "Mr. Lin, do you know of any case in which we have halted a proposed rulemaking?"

That's the most obvious question a judge could have asked, and I was really interested hear what Lin was going to say. His answer was "I do not, your Honor."

So Lin conceded that his argument is quite literally unprecedented. Judge Griffith (who asked that first question), then went on to note that they would be able to challenge the final rule when it is issued and added, "Why in the world would we resort to an extraordinary writ, which we have never used before?"

I won't bore you with the blow-by-blow, but suffice it to say that Lin did not seem to persuade the judges.

My question is, why did they bring this challenge? I think any reasonable observer would conclude that the odds were pretty long against a court, for the first time ever, granting a writ to stop a proposed rulemaking. Indeed, West Virginia's Attorney General, Patrick Morrissey, said yesterday after oral argument, "It's not typical to ask for an extraordinary writ or to set aside a proposed rule before it's finalized. We acknowledged that today in court. We've acknowledged that for a long period of time."

There are conceivable answers to the question why they brought this challenge. There is always some possibility of victory, and maybe they thought that chance, in light of the benefit to them, was worth it. Maybe they really wanted to show their voters (for the states) and their owners (for the private companies) that they are doing everything possible to stop the EPA. Maybe they think that courts are ready to reconsider finality (though I don't know on what basis they would so imagine), and this is the best case for doing so. Maybe they want negative publicity for the EPA flowing from a legal challenge (but won't a legal victory for the EPA give it positive publicity)?

And the benefit of winning in this case doesn't seem unusually great: The rules are planned to be issued this summer, and once that happens they clearly can be challenged.

More importantly, if there is an obvious answer why they brought this challenge, then why aren't similar challenges brought all the time? Savvy litigants (and these lawyers and clients seem savvy and experienced) rarely bring challenges to proposed rules, for the reasons that oral argument in this case highlighted.

So, not for the first time, I'm befuddled by a litigation strategy. Maybe this post is just another way of asking why presumably rational and savvy outliers exist, in this case in the litigation context. And of course maybe my estimation of the odds is wrong and they'll win that challenge. I'll take that bet in any jurisdiction where such a bet is legal.