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Law School Case Brief

GE v. EPA - 351 U.S. App. D.C. 291, 290 F.3d 377 (2002)

Rule:

The fact that a law may be altered in the future has nothing to do with whether it is subject to judicial review at the moment. If the possibility (indeed, the probability) of future revision in fact could make agency action non-final as a matter of law, then it would be hard to imagine when any agency rule--and particularly one that must be updated periodically to reflect advances in science--would ever be final as a matter of law.

Facts:

The Environmental Protection Agency issued "PCB Risk Assessment Review Guidance Document" and petitioner sought judicial review contending that the Document was a "rule" within the meaning of § 19(a) of the Toxic Substances Control Act, and hence the court of  appeals had jurisdiction to review its promulgation.

Issue:

Was the EPA’s issued document subject to judicial review?

Answer:

Yes.

Conclusion:

The court of appeals concluded that the case was ripe for review, and that the Document was a legislative rule such that the court did have jurisdiction to entertain the petition. The court observed that the EPA conceded that it did not comply with the procedural requirements of the TSCA and of the Administrative Procedures Act and more specifically the agency failed to publish a notice of proposed rulemaking, give interested parties an opportunity to comment, and hold an informal hearing.  The court held that the Document was a legislative rule because on its face it purported to bind both applicants and the EPA with the force of law.

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