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George Washington University




In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), the Supreme Court unanimously and stridently chastised the D.C. Circuit for forcing the Nuclear Regulatory Commission to employ procedures such as discovery and cross-examination in a notice-and-comment rulemaking when no organic statute, regulation, or constitutional provision required it. Vermont Yankee is almost universally regarded as one of the most important administrative law decisions issued by the Supreme Court. For the past three decades, various scholars, most notably Paul Verkuil and Richard Pierce, have been anticipating, and urging, a "Vermont Yankee II," in which the Court would similarly invalidate other administrative law doctrines. These prior calls for a Vermont Yankee II were not actually attempts to extend the reasoning and holding of Vermont Yankee. Rather Vermont Yankee was employed as a broad symbol - a metaphor of sorts - for Supreme Court intervention to reign in undue lower-court interference with agency discretion and autonomy. There are a significant number of important administrative law doctrines that seem to us to fly squarely in the face of all but the most unreasonably narrow understandings of the Vermont Yankee decision. These doctrines, ranging from the prohibitions on agency ex parte contacts and prejudgment in rulemakings to the expanded modern conception of the notice of proposed rulemaking, are all ripe for reconsideration. In this paper, after setting out the Vermont Yankee decision, we examine previous calls for a "Vermont Yankee II" and explain, in light of what we characterize as the "natural reading" of Vermont Yankee why the regulation of ex parte contacts and agency prejudgment in rulemakings, and mainstream applications of the APA's notice requirements violate the holding of Vermont Yankee as properly understood, as well as the principles and policies underlying the decision. Rejecting these doctrines is thus the appropriate target for a Vermont Yankee II.


Boston University School of Law Working Paper Series, Public Law & Legal Theory Working Paper No. 06-25

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