BNA Energy and Climate Report Quotes Pratik Shah on Perez v. Mortgage Bankers Assoc.

For its article, “Administrative Law Case Could Affect Agency Interpretations, Attorneys Say,” Bloomberg BNA’s Energy and Climate Report quoted Akin Gump Supreme Court and appellate practice co-head Pratik Shah on the potential impact of a case to be heard by the U.S. Supreme Court in December.

Perez v. Mortgage Bankers Association treats the question of “whether a federal agency must engage in notice-and-comment rulemaking before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation,” per the terms of the Administrative Procedure Act (APA).

Although the case involves the Department of Labor, Shah noted that this could be the Court’s “most important environmental law case” of the Term.  Speaking at a briefing held by the U.S. Chamber Litigation Center, he said that the notice-and-comment requirement for interpretive rule revision was a “thorn in the government’s side” and noted that it frequently affected the Environmental Protection Agency, in particular.

Shah noted that the government believes that, because the APA does not require notice and comment before issuance of an interpretive rule, it, similarly, would not require notice-and-comment procedures to be invoked by an agency when it changes that rule. He characterized the D.C. Circuit’s underlying 2013 decision—that federal agencies must first provide for notice and comment before changing a regulatory interpretation—as an outlier, given that other courts had held that no notice-and-comment rulemaking is needed.

He said that, should the Court rule in favor of the government, more frequent changes to interpretive rules would be made by agencies, particularly after White House administrations change.  Shah added that the Labor Department’s involvement could hurt the government’s chances before the Court, as the justices have “come down hard” on the department recently.