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55 Tul. L. Rev. 418 (1980-1981)
Judicial Review of Informal Rulemaking: Waiting for Vermont Yankee II

handle is hein.journals/tulr55 and id is 436 raw text is: SYMPOSIUM: A COMPARATIVE ANALYSIS OF VERMONT YANKEE JUDICIAL REVIEW OF INFORMAL RULEMAKING: WAITING FOR VERMONT YANKEE II PAUL R. VERKUIL* Vermont Yankee1 has quickly become a classic administra- tive law case. Few decisions have sparked such universal recogni- tion among the practicing bar and academic community or pro- duced such extensive commentary on the Administrative Procedure Act (APA)2 and its rulemaking provisions. Yet de- spite this impact, the case is surprisingly limited in its holding and persistently opaque in its implications. No matter how many times one reads the case, the Court's discussion of the ap- propriate standards for judicial review of rulemaking remains in- adequate. The conclusion is inescapable that Vermont Yankee can live up to its reputation as a watershed decision only if it is followed by a second decision that resolves the complicated issue of the appropriate scope of review of informal rulemaking. It should be recalled that Vermont Yankee left open on re- mand to the District of Columbia Circuit the important question whether the invalidation of the fuel cycle rule could be upheld because the rulemaking record was inadequate under the appli- cable scope of review standard. The Supreme Court had great difficulty determining the basis on which the circuit court had initially struck down the rule.4 Once the Court concluded that the basis was the erroneous one of inadequate rulemaking proce- * Dean and Professor of Law, Tulane Law School 1. 435 U.S. 519 (1978). 2. 5 U.S.C. §§ 500-576 (1976). 3. Id.; 435 U.S. at 549. 4. The Court stated: After a thorough examination of the opinion itself, we conclude that, while the matter is not entirely free from doubt, the majority of the Court of Appeals struck down the rule because of the perceived inadequacies of the procedures employed in the rulemaking proceedings. Id. at 540-41. 418

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