Vermont Yankee II
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Vermont Yankee II is a metaphor used by scholars and commentators of the administrative state to describe potential rulings from the United States Supreme Court that would stop undue lower court interference in the administrative process. The name comes from the Vermont Yankee case where the Court held that lower courts could not impose procedural requirements on administrative agencies beyond those specified in the Administrative Procedure Act (APA). Later observers of the administrative state have speculated about the Court issuing a "Vermont Yankee II" to rein in lower courts more and provide further guidance about how to conduct judicial review of agency actions.[1]
Background: Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council
Vermont Yankee v. NRDC was a 1978 case involving the ability of courts to impose additional procedural requirements on government agencies beyond what the Administrative Procedure Act (APA) required. The U.S. Supreme Court reversed the ruling of the D.C. Circuit Court of Appeals, holding that the court had exceeded its authority under the APA.[2][3]
The U.S. Supreme Court set a clear and definitive precedent that courts could not impose additional procedural requirements on agencies, they could only evaluate existing procedures. Furthermore, judicial review could only concern itself with the agency's success or failure to conform to the established procedures, it could not invalidate an action simply because the court was "unhappy with the result reached."[3]
Usage of term Vermont Yankee II
First use
Scholar Paul Verkuil first discussed the possibility of a "Vermont Yankee II" in a 1981 Tulane Law Review article. He argued that the first Vermont Yankee was influential, but too vague to settle fundamental questions about judicial review of agency actions. He argued against courts imposing hard look review because that level of review would have similar adverse effects to those remedied in the original Vermont Yankee case.[4][5]
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Even if the Court decided how strict reviewing courts may be toward informal rulemaking, Verkuil claimed that a "Vermont Yankee III" might then be necessary to determine the scope of review for nuclear power regulation. He pointed to the political context of the decision and the Court's reluctance to allow lower courts to interfere:[4]
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Richard J. Pierce calls for Vermont Yankee II
Two decades after Verkuil made his original case, law professor Richard J. Pierce argued for his own "Vermont Yankee II." He argued that the Supreme Court should overrule the First Circuit Court of Appeals' presumption that hearings require formal process, including cross-examination. Using Vermont Yankee as a model, Pierce contends:[8]
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Disagreement with prior calls for Vermont Yankee II
Jack M. Beermann and Gary Lawson, professors at the Boston University School of Law, opposed the way Verkuil and Pierce advocated a Vermont Yankee II ruling.[9]
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Beermann and Lawson go on to say that Verkuil and Pierce's arguments might not flow from the logic of Vermont Yankee, but other potential Supreme Court rulings might:[9]
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Verkuil stops waiting for Vermont Yankee II
After decades, Verkuil made the case that the Supreme Court's decision in Chevron v. Natural Resources Defense Council constituted a stealth version of his anticipated Vermont Yankee II. Much of what he wanted the Court to clarify was addressed in Chevron and subsequent cases.[10]
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See also
- Administrative state
- Separation of powers
- Administrative Procedure Act
- Informal rulemaking
- Arbitrary-or-capricious test
- Chevron deference (doctrine)
- Supreme Court of the United States
- United States Court of Appeals for the District of Columbia Circuit
- "Libertarian Administrative Law" by Cass R. Sunstein and Adrian Vermeule (2015)
Supreme Court Cases
External links
Footnotes
- ↑ Administrative Law Review, "Waiting for Vermont Yankee II," 2005
- ↑ Oyez, Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, Inc., accessed August 9, 2018
- ↑ 3.0 3.1 FindLaw, VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC, accessed November 12, 2017
- ↑ 4.0 4.1 4.2 Tulane Law Review, "Judicial Review of Informal Rulemaking: Waiting for Vermont Yankee II," 1981
- ↑ George Washington Law Review, "Waiting for Vermont Yankee III, IV, and V - A Response to Beermann and Lawson," 2007
- ↑ 6.0 6.1 6.2 6.3 6.4 6.5 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Oyez, Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, Inc., accessed August 16, 2018
- ↑ 8.0 8.1 Administrative Law Review, "Waiting for Vermont Yankee II, accessed August 16, 2018
- ↑ 9.0 9.1 9.2 9.3 George Washington Law Review, "Reprocessing Vermont Yankee," 2007
- ↑ 10.0 10.1 George Washington Law Review, "The Wait Is Over: Chevron as the Stealth Vermont Yankee II," 2007
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