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Vermont Yankee II is a metaphor used by scholars and commentators of theadministrative state to describe potential rulings from theUnited States Supreme Court that would stop undue lower court interference in the administrative process. The name comes from the Vermont Yankee case where the Court held that lower courts could not impose procedural requirements on administrative agencies beyond those specified in theAdministrative Procedure Act (APA). Later observers of the administrative state have speculated about the Court issuing a "Vermont Yankee II" to rein in lower courts more and provide further guidance about how to conduct judicial review of agency actions.^[1]

Background:Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council

Vermont Yankee v. NRDC was a 1978 case involving the ability of courts to impose additional procedural requirements on government agencies beyond what theAdministrative Procedure Act (APA) required. TheU.S. Supreme Court reversed the ruling of theD.C. Circuit Court of Appeals, holding that the court had exceeded its authority under the APA.^[2][3]

TheU.S. Supreme Court set a clear and definitive precedent that courts could not impose additional procedural requirements on agencies, they could only evaluate existing procedures. Furthermore,judicial review could only concern itself with the agency's success or failure to conform to the established procedures, it could not invalidate an action simply because the court was "unhappy with the result reached."^[3]

Usage of termVermont Yankee II

First use

ScholarPaul Verkuil first discussed the possibility of a "Vermont Yankee II" in a 1981 Tulane Law Review article. He argued that the firstVermont Yankee was influential, but too vague to settle fundamental questions about judicial review of agency actions. He argued against courts imposing hard look review because that level of review would have similar adverse effects to those remedied in the originalVermont Yankee case.^[4][5]

Even if the Court decided how strict reviewing courts may be toward informal rulemaking, Verkuil claimed that a "Vermont Yankee III" might then be necessary to determine the scope of review for nuclear power regulation. He pointed to the political context of the decision and the Court's reluctance to allow lower courts to interfere:^[4]

Richard J. Pierce calls forVermont Yankee II

Two decades after Verkuil made his original case, law professor Richard J. Pierce argued for his own "Vermont Yankee II." He argued that the Supreme Court should overrule the First Circuit Court of Appeals' presumption that hearings requireformal process, including cross-examination. UsingVermont Yankee as a model, Pierce contends:^[8]

Disagreement with prior calls forVermont Yankee II

Jack M. Beermann andGary Lawson, professors at the Boston University School of Law, opposed the way Verkuil and Pierce advocated aVermont Yankee II ruling.^[9]

Beermann and Lawson go on to say that Verkuil and Pierce's arguments might not flow from the logic ofVermont Yankee, but other potential Supreme Court rulings might:^[9]

Verkuil stops waiting forVermont Yankee II

After decades, Verkuil made the case that the Supreme Court's decision inChevron v. Natural Resources Defense Council constituted a stealth version of his anticipatedVermont Yankee II. Much of what he wanted the Court to clarify was addressed inChevron and subsequent cases.^[10]

See also

• Administrative state
• Separation of powers
• Administrative Procedure Act
• Informal rulemaking
• Arbitrary-or-capricious test
  • Hard look review
• Chevron deference (doctrine)
• Supreme Court of the United States
• United States Court of Appeals for the District of Columbia Circuit
• "Libertarian Administrative Law" by Cass R. Sunstein and Adrian Vermeule (2015)

Supreme Court Cases

• • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council
  • Chevron v. Natural Resources Defense Council

External links

• Search Google News for this topic

Footnotes

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Gardner •A.L.A. Schechter Poultry Corp. v. United States •Association of Data Processing Service Organizations v. Camp •Auer v. Robbins •Chevron v. Natural Resources Defense Council •Citizens to Preserve Overton Park v. Volpe •Federal Trade Commission (FTC) v. Standard Oil Company of California •Field v. Clark •Food and Drug Administration v. Brown and Williamson Tobacco Corporation •Humphrey's Executor v. United States •Immigration and Naturalization Service (INS) v. Chadha •J.W. Hampton Jr. & Company v. United States •Lucia v. SEC •Marshall v. Barlow's •Massachusetts v. Environmental Protection Agency •Mistretta v. United States •National Federation of Independent Business (NFIB) v. Sebelius •National Labor Relations Board v. Noel Canning Company •National Labor Relations Board v. Sears, Roebuck & Co. •Panama Refining Co. v. Ryan •Securities and Exchange Commission v. Chenery Corporation •Skidmore v. Swift & Co. •United States v. Lopez •United States v. Western Pacific Railroad Co. •Universal Camera Corporation v. National Labor Relations Board •Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council •Wayman v. Southard •Weyerhaeuser Company v. United States Fish and Wildlife Service •Whitman v. American Trucking Associations •Wickard v. Filburn •Wiener v. United States Terms Adjudication (administrative state) •Administrative judge •Administrative law •Administrative law judge •Administrative state •Arbitrary-or-capricious test •Auer deference •Barrier to entry •Bootleggers and Baptists •Chevron deference (doctrine) •Civil servant •Civil service •Code of Federal Regulations •Codify (administrative state) •Comment period •Compliance costs •Congressional Record •Coordination (administrative state) •Deference (administrative state) •Direct and indirect costs (administrative state) •Enabling statute •Ex parte communication (administrative state) •Executive agency •Federal law •Federal Register •Federalism •Final rule •Formal rulemaking •Formalism (law) •Functionalism (law) •Guidance (administrative state) •Hybrid rulemaking •Incorporation by reference •Independent federal agency •Informal rulemaking •Joint resolution of disapproval (administrative state) •Major rule •Negotiated rulemaking •Nondelegation doctrine •OIRA prompt letter •Organic statute •Pragmatism (law) •Precautionary principle •Promulgate •Proposed rule •Publication rulemaking •Regulatory budget •Regulatory capture •Regulatory dark matter •Regulatory impact analysis •Regulatory policy officer •Regulatory reform officer •Regulatory review •Rent seeking •Retrospective regulatory review •Risk assessment (administrative state) •Rulemaking •Separation of powers •Significant regulatory action •Skidmore deference •Statutory authority •Substantive law and procedural law •Sue and settle •Sunset provision •Unified Agenda of Federal Regulatory and Deregulatory Actions •United States Code •United States Statutes at Large Bibliography "Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000) "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017) "Constitutionalism after the New Deal" by Cass R. Sunstein (1987) Federalist No. 23 by Alexander Hamilton (1787) "From Administrative State to Constitutional Government" by Joseph Postell (2012) "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002) "Rulemaking as Legislating" by Kathryn Watts (2015) "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016) "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017) "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007) "The Rise and Rise of the Administrative State" by Gary Lawson (1994) "The Study of Administration" by Woodrow Wilson (1887) "The Threat to Liberty" by Steven F. Hayward (2017) "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008) Agencies Administrative Conference of the United States •United States Civil Service Commission •U.S. Government Accountability Office •U.S. Office of Information and Regulatory Affairs •U.S. Office of Management and Budget