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Visions of Vermont Yankee

Vermont Yankee is having a renaissance that few are noticing. That canonical 1978 case conventionally stands for the proposition that agencies are generally free to fashion their own procedures. Although one might think that today’s Supreme Court would view that pro-agency doctrine skeptically, the opposite is true. In the last ten years, many of the Court’s conservatives have invoked the principle, and its invocation in the circuit courts has likewise been lopsidedly conservative. Moreover, at both levels, jurists have applied the principle to questions beyond those in Vermont Yankee, which addressed only the Administrative Procedure Act’s (APA) informal rulemaking procedures. In short, Vermont Yankee is a doctrine that conservatives can love and are willing to deploy broadly. In extending Vermont Yankee’s principle to new problems, however, jurists are gesturing at different “visions” of what the principle is and how it should apply more broadly across administrative law. Drawing from recent judicial invocations of Vermont Yankee, both at the Supreme Court and in the circuit courts, this Article identifies several of these visions of Vermont Yankee; explores their potential broader implications for administrative law; and assesses their consistency with the original Vermont Yankee decision and today’s prevailing methodological commitments. As the Article shows, some jurists treat Vermont Yankee as a common law remedial principle, with potential consequences for doctrines like remand without vacatur and mandamus for agency delay. Others see it as a quasi-constitutional doctrine of judicial restraint that promotes separation of powers values, principally legislative primacy in administration. And still others essentially treat it as a principle of statutory construction for regulatory statutes—a vision that could blunt the effect of Chevron’s overruling while also tempering the hardest of hard look review. Ultimately, this Article defends Vermont Yankee as a principle of construction not unlike Loper Bright’s recent reaffirmation that courts should respect delegated authority. This vision turns Vermont Yankee’s focus away from the APA and instead emphasizes the importance of delegated procedural authority in other regulatory statutes that create and empower agencies. Embracing Vermont Yankee as a lesson about construing regulatory statutes may temper current perceptions of judicial anti-administrativism by grounding this pro-agency rule in formalist thinking that is consistent with textualism and therefore more likely to promote consistent and ideologically neutral application.

Elsevier BV

Adam Crews

2024

Title: Visions of Vermont Yankee

Description:

Vermont Yankee is having a renaissance that few are noticing.

That canonical 1978 case conventionally stands for the proposition that agencies are generally free to fashion their own procedures.

Although one might think that today’s Supreme Court would view that pro-agency doctrine skeptically, the opposite is true.

In the last ten years, many of the Court’s conservatives have invoked the principle, and its invocation in the circuit courts has likewise been lopsidedly conservative.

Moreover, at both levels, jurists have applied the principle to questions beyond those in Vermont Yankee, which addressed only the Administrative Procedure Act’s (APA) informal rulemaking procedures.

In short, Vermont Yankee is a doctrine that conservatives can love and are willing to deploy broadly.

In extending Vermont Yankee’s principle to new problems, however, jurists are gesturing at different “visions” of what the principle is and how it should apply more broadly across administrative law.

Drawing from recent judicial invocations of Vermont Yankee, both at the Supreme Court and in the circuit courts, this Article identifies several of these visions of Vermont Yankee; explores their potential broader implications for administrative law; and assesses their consistency with the original Vermont Yankee decision and today’s prevailing methodological commitments.

As the Article shows, some jurists treat Vermont Yankee as a common law remedial principle, with potential consequences for doctrines like remand without vacatur and mandamus for agency delay.

Others see it as a quasi-constitutional doctrine of judicial restraint that promotes separation of powers values, principally legislative primacy in administration.

And still others essentially treat it as a principle of statutory construction for regulatory statutes—a vision that could blunt the effect of Chevron’s overruling while also tempering the hardest of hard look review.

Ultimately, this Article defends Vermont Yankee as a principle of construction not unlike Loper Bright’s recent reaffirmation that courts should respect delegated authority.

This vision turns Vermont Yankee’s focus away from the APA and instead emphasizes the importance of delegated procedural authority in other regulatory statutes that create and empower agencies.

Embracing Vermont Yankee as a lesson about construing regulatory statutes may temper current perceptions of judicial anti-administrativism by grounding this pro-agency rule in formalist thinking that is consistent with textualism and therefore more likely to promote consistent and ideologically neutral application.

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