Taking the Path Less Travelled: FOIA’s Impact on the Tension Between the D.C. Circuit and Vermont Yankee

Note — Volume 102, Issue 4

102 Va. L. Rev. 1101
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The battle looked to be over; the smoke had all but cleared. Vermont Yankee—wherein the Supreme Court announced that the APA established the “maximum” procedural requirements for informal rulemaking—ostensibly brought the steady advance of judicial innovation and oversight in the regulatory state to a halt. Since Vermont Yankee was decided, however, the D.C. Circuit has continued the offensive and treated the case as a mere bridgehead. More specifically, the D.C. Circuit remains steadfast in its use of the pre-Vermont Yankee case Portland Cement to oblige agencies engaged in notice-and-comment rule making to abide by disclosure rules that cannot be found in the text of the APA or any other organic statute. Judge Brett Kavanaugh of the D.C. Circuit recently examined this apparent conflict and determined that Portland Cement stands on “shaky legal foundation” due to its dearth of statutory roots. Judge Kavanaugh’s assessment is not sui generis. In fact, few other seemingly inconsistent decisional lineages have sparked as much commentary on the APA. In an attempt to further pollinate the landscape of the current battleground, this Note journeys along the path laid down by Judge Kavanaugh and discovers a textually grounded alternative to Portland Cement. If the D.C. Circuit heeds Judge Kavanaugh’s advice and overturns Portland Cement, interested parties could simply file FOIA requests to obtain the information Portland Cement requires agencies to disclose. The goal of this Note is to explore and uncover the practical and legal consequences of a disclosure regime anchored in FOIA, and with any luck change the stakes of the debate.

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  Volume 102 / Issue 4  

Two Concepts of Discrimination

By Deborah Hellman
102 Va. L. Rev. 895

Executive Federalism Comes to America

By Jessica Bulman-Pozen
102 Va. L. Rev. 953

The Failure of Liability in Modern Markets

By Yesha Yadav
102 Va. L. Rev. 1031

Taking the Path Less Travelled: FOIA’s Impact on the Tension Between the D.C. Circuit and Vermont Yankee

By Matthew S. Brooker
102 Va. L. Rev. 1101