finding that this “venerable principle” that the construction of a statute by those charged with its execution should be followed unless there are “compelling indications that it is wrong,” has even “greater force when Congress has specifically left it to the agency to flesh out the terms of the statute”
How later courts described this case
- finding that this “venerable principle” that the construction of a statute by those charged with its execution should be followed unless there are “compelling indications that it is wrong,” has even “greater force when Congress has specifically left it to the agency to flesh out the terms of the statute”
- noting that a party who had the opportunity to seek direct review of a regulation cannot use a petition to repeal a regulation as a “back door procedural challenge[]” to challenge the procedures used to promulgate the original rule
- collecting cases in which the court “scrutinized regulations immune from direct review by reviewing the denial of a subsequent rule-making petition which challenged the regulations on demonstrable grounds for substantive invalidity”
- holding applies to “those against whom the agency is not proceeding to enforce the regulation”
Written by the judges who cited it.
The opinion
HARRY T. EDWARDS, Circuit Judge,
concurring:
I concur in judgments reached in the majority opinion. As to the “procedural” claim, I agree that petitioner’s long-delayed challenge to the procedures used by the NRC in adopting the October 1978 amendments to 10 C.F.R. Part 21 was untimely. Therefore, this court is without jurisdiction to hear or decide petitioner’s claim that the challenged regulations are unlawful because they were issued without notice and comment.
As to the substantive claim, I concur in the judgment of the majority opinion because I believe that the NRC’s denial of petitioner’s request that the agency rescind the October 1978 amendments and reimpose the original requirements of Part 21 was “neither arbitrary, nor capricious, nor an abuse of discretion, or otherwise contrary to statutory, procedural or constitutional requirements.” WWHT, Inc. v. F.C.C., 656 F.2d 807 , 819 No. 80-1613 (D.C.Cir.1981). I can find nothing in the literal language of section 206 of the Energy Reorganization Act to compel the result here sought by petitioners. Therefore, I believe that this court is obliged to respect “the broad discretionary powers possessed by administrative agencies to promulgate (or not promulgate) rules, and the narrow scope of review to which the exercise of that discretion is subjected.” Id. at 818-19.
As I read the statute, the agency was authorized to adopt regulations in the form initially promulgated in Part 21 in 1977 or as subsequently amended in 1978. I do not read section 206 of the statute to compel or bar either the original or amended regulations. In other words, both the original and amended versions of Part 21 were within the permissible range of agency discretion.
In' light of certain arguments that were advanced during the presentation of this case, I am constrained to make two additional observations. First, I reject any suggestion that the Energy Reorganization Act and the accompanying legislative history compel a finding that section 206 is limited to “major components.” Second, I also reject any suggestion that the section 206 cannot be read to cover “commercial grade” items at various tiers in the procurement chain. It is one thing to find that the agency’s amended regulations in Part 21 are neither arbitrary, nor capricious, nor an abuse of discretion, nor otherwise contrary to law; it is quite another thing to suggest that section 206 applies only to noncommercial grade “major components.” In light of the plain language in the statute, I cannot concur in the latter suggestion.