FCC v. Fox Television – “ hard look” review of policy changes

1. FCC v. Fox Television – “hard look” review of policy changes • Federal law gives FCC power to enforce statutory ban on broadcast of any “indecent” language. • FCC reg interprets language to prohibit “patently offensive” language that describes “sexual or excretory activities” during periods when kids might hear it • 2004 – FCC changed its policy to allow enforcement of the FCC reg against fleeting uses of “patently offensive” language (old policy only enforced against deliberate repetitive use) • Fox challenged the change in enforcement policy • QUESTION: • How should a court apply “hard look” review to an agency’s decision to substantially change a long-standing policy

2. “Hard look” review & changed policy positions – Scalia v. Breyer • Scalia • What kind of reasons for the new policy are required to justify it? • What explanation/evidence is necessary to justify the new policy? • Where do 1A interests fit? • Breyer • What kind of reasons for the new policy are required to justify it? • What explanation/evidence is necessary to justify the new policy? • Where do 1A interests fit? What reasoning and evidence did the FCC provide?

3. What Scalia & Breyer agree on regarding application of hard look review to changes in longstanding policy: • Agencies must provide more detailed explanations when • Fact findings were integral to the old policy and the new policy relies on fact findings that contradict those facts underlying the prior policy • Agency must now at least explain why its old view of the facts is no longer controlling • Agencies change their view on the governing law • Agency must explain why law is no longer controlling • People have relied on the prior policy to a great extent when taking action • Agency must explain how it will deal with these reliance interests

4. Massachusetts v. EPA – the statute • CAA § 202(a)(1) – EPA administrator shall “by regulation” prescribe and occasionally revise standards applicable to “emission of any air pollutant” from new motor vehicles that “in his judgment cause, or contribute to, air pollution, which may be reasonably anticipated to endanger public health or welfare” • CAA § 7602(g) defines “air pollutant” as “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air” • CAA § 7602(h) defines “welfare” as, among other things, “effects on . . . weather . . . and climate”

5. Massachusetts v. EPA – more facts • 10/99 – private organizations petition EPA to initiate a rulemaking to regulate greenhouse gas emissions from motor vehicles under § 202(a)(1) • Claim greenhouse gases are “air pollutants” that affect “public welfare” • EPA initiates public comment in early 2001 • WH seeks guidance on certainties/uncertainties re science of climate change from NRC (during comment period) • NRC Report concluded that greenhouse gases were accumulating and contributing to rising temperatures • 9/03 – EPA issues order denying rulemaking petition because • (1) CAA did not authorize issuance of mandatory regs re global climate change • (2) even if it had that authority, EPA believed it was “unwise” to enact such regs at that time.

6. Is EPA’s decision not to enact a rule arbitrary and capricious under “hard look” review? • On what factors does the EPA base its decision not to enact a rule regulating greenhouse gases? • Why does the majority reject reliance on those factors? • What does the statute require/say? • How do the factors relied on relate to the statute? • Why does Scalia think that agency’s decision survives hard look review? • Is his statutory reading literally correct? • Are there problems that arise practically?

7. Massachusetts v. EPA – judicial review of agency inaction • Conventional wisdom = it is VERY difficult to convince a court to review agency inaction (i.e., decision NOT to do something such as enact a regulation, refusal to enforce rule) • E.g., agency refusals to initiate enforcement actions are essentially UNREVIEWABLE • These are actions committed to agency’s discretion (MORE LATER) • BUT decision not to enact a rule may be reviewable – received “hard look” review in Mass. v. EPA • As a practical matter – courts are still likely to be deferential to agency’s discretionary decision not to enact a rule • BUT when the enabling statute specifically MANDATES that an agency regulate & the agency’ responds that it can’t or won’t or shouldn’t, it’s action will get some scrutiny to make sure it’s rational

8. Operationalizing “hard look” review – a summary • Critical question – did agency engage in reasoned decision-making? • If so, court will uphold. • If not, remand to the agency, which can enact the same rule, which court often will uphold on a subsequent challenge if it believes the agency’s decision was well-reasoned. • How to apply hard look review? • Identify the statutory goal the agency is trying to implement • Identify the method used to implement statutory goal • I.e., regulation, policy directive, etc. and what they require • Are there alternatives to the agency’s chosen method? • Did the agency adequately justify its method over alternatives? • Did agency ignore evidence or arguments of others? • Did agency ignore statutory mandate? • Does evidence support/contradict agency’s choice? • Did agency consider things that are irrelevant? • Does agency’s explanation make sense?