25 state attorneys general challenge Ninth Circuit ruling on citizen standing

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Ballotpedia staff

In this edition of Checks and Balances:

Federal stories:

  • 25 state attorneys general challenge Ninth Circuit ruling on citizen standing. 
  • SCOTUS denies request to hear commissioner removal authority case. 

State story:

  • Arizona voters defeat REINS-style ballot measure.
  • New Hampshire lawmakers override public participation law veto.
  • Ohio enacts education bill reducing licensing requirements, repealing education regulations. 

Commentary:

  • In a recent post for the Yale Journal of Regulation’s Notice and Comment blog, law professor Chad Aquiteri writes about uncertainty surrounding the future of Auer deference following the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo. 

Regulatory Tally:

  • 126 proposed rules and 275 final rules added to the Federal Register in October.
  • OIRA’s regulatory review activity.
  • Highlighted rule implementing national drinking water regulations.

In Washington

25 state attorneys general challenge Ninth Circuit ruling on citizen standing 

What’s the story?

A group of 25 Republican attorneys general filed an amicus brief with the U.S. Supreme Court on Oct. 28, challenging a United States Court of Appeals for the Ninth Circuit decision upholding citizens’ standing to sue over violations of the Clean Water Act (CWA). 

The lawsuit—which a citizen-led environmental group filed against the Port of Tacoma and SSA Terminals—argued SSA and the Port failed to obtain necessary stormwater discharge permits from the Washington State Department of Ecology, which sets stricter standards than federal law.

The Ninth Circuit ruled in favor of the environmental group, arguing that “even though the ISGPs [Industrial Stormwater General Permits] exceeded the requirements of the federal regulations, they were enforceable in a citizen suit.” 

The attorneys general argued allowing private citizens to challenge actions that didn’t violate CWA requirements in federal courts could disrupt local environmental management and undermine state regulatory authority. They also said, “An overly broad citizen-suit provision further frustrates core federalism tenets by hampering regulatory innovation.”

The background

Section 505 of the CWA allows private citizens or groups to file lawsuits against any person or entity allegedly violating the act, including violations of pollutant discharge permits, water quality standards, or pollutant limitations. 

The environmental group in the case challenged the Port of Tacoma’s compliance with a state-issued stormwater permit under Section 505. The group argued SSA and the Port violated the CWA by not complying with state permit requirements in an area referred to as the Wharf. The group argued the permit requirements applied to the entire facility, including the Wharf. SSA and the Port, in response, argued that the permit did not cover the Wharf and that citizen suits under the CWA should only apply to federal violations, not violations of state regulations that exceed federal standards.

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SCOTUS denies request to hear commissioner removal authority case 

What’s the story?

The United States Supreme Court on Oct. 21 denied a petition for certiorari (cert.) in Consumers’ Research v. Consumer Product Safety Commission, meaning it will not hear the case challenging limits to the president’s authority to remove independent agency commissioners. 

The denial of cert. means the Fifth Circuit’s ruling—which argued the agency’s removal restrictions did not violate the separation of powers according to precedent established by Humphrey’s Executor v. United States (1935)—stands. 

Consumers’ Research argued restrictions on the president’s ability to remove Consumer Product Safety Commission (CPSC) officials violated the separation of powers. 

Although the Fifth Circuit upheld the agency’s structure, the decision said the “​​case may also attract the [Supreme] Court’s interest. It tees up one of the fiercest (and oldest) fights in administrative law: the Humphrey’s Executor ‘exception’ to the general ‘rule’ that lets a president remove subordinates at will.” 

The Supreme Court did not explain the denial. In a JD Supra post, Cydney Posner said, “We may never know whether the denial was based on narrow case specifics or signals an intent by the Court to pause its efforts to curb the administrative state, as [sic] least temporarily.”

The background

Consumers’ Research and By Two, L.P. filed a lawsuit in the United States District Court for the Eastern District of Texas against the CPSC, challenging the for-cause restrictions on the president’s removal authority over agency commissioners.  

The district court ruled the agency’s structure was constitutional and did not violate the separation of powers under the Constitution.

The case was appealed to the United States Court of Appeals for the Fifth Circuit, which upheld the lower court’s decision in a Jan. 17 opinion. The decisions were based on Supreme Court precedent from Humphrey’s Executor v. United States, which held commissioners could only be removed for reasons specifically listed in relevant laws—not at the discretion of the president.

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In the states

Arizona voters defeat REINS-style ballot measure

What’s the story? 

Voters in Arizona defeated a ballot measure on Nov. 5 related to legislative oversight of agency rulemaking. 

The measure, Proposition 315, would have required legislative approval of proposed rules estimated to increase regulatory costs more than $500,000 over five years before they could take effect. The measure was defeated, with 53.3% of voters voting against the requirement and 46.7% voting in favor of it, according to votes counted as of Nov. 13. 

Pinny Sheoran, president of the League of Women Voters of Arizona, opposed the measure, arguing, “It undermines the autonomy of state agencies by shifting accountability for spending from the governor’s and state attorney’s offices to the legislature.” Arizona State Director of Americans for Prosperity Stephen Shadegg supported the measure, saying it would return “legislative powers to the legislature and, by extension, to The People of Arizona.”

The ballot measure contained provisions modeled after the Regulations from the Executive in Need of Scrutiny (REINS) Act—a federal legislative proposal to increase legislative oversight of administrative agency rulemaking. 

The background

Republican lawmakers introduced the measure as Senate Concurrent Resolution 1012 (SCR 1012) on Jan. 23. The measure passed the Senate 16-13 on Feb. 22 along party lines. The House passed the measure 31-29 along party lines on June 12.

The Arizona State Legislature passed nearly identical REINS-style state laws in 2023 and 2024. Gov. Katie Hobbs (D) vetoed both bills. The legislature needed a two-thirds vote to override the governor’s veto, but Republicans held a 53% majority in the Senate and a 52% majority in the House.

The legislature can place proposals, such as Proposition 315, on the ballot with a simple majority vote. Arizona does not require the governor’s approval for legislatively referred ballot measures.

Proposition 315 marked the first attempt to enact REINS-style provisions in a state through a ballot measure. Four states have enacted REINS-style state laws as of Nov. 2024:

  • The Kansas State Legislature voted to override Gov. Laura Kelly’s (D) veto of a REINS-style state law in April 2024.
  • Indiana Gov. Eric Holcomb (R) signed a REINS-style bill into law in March 2024.
  • Former Wisconsin Gov. Scott Walker (R) signed a REINS-style bill into law in 2017.
  • The Florida State Legislature voted to override former Republican Gov. Charlie Crist’s veto of a REINS-style state law in 2010.

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New Hampshire lawmakers override public participation law veto

What’s the story? 

New Hampshire lawmakers on Oct. 10 overrode Gov. Chris Sununu’s (R) veto of a bill regarding public participation in agency rulemaking. The bill requires rulemaking agencies to compile reports describing how suggestions from public comments were incorporated into final rules. It also requires agencies to “provide a detailed explanation that includes the facts, data, interpretations, and policy choices that justify why the adopting agency did not amend the rules.”

Gov. Sununu argued in his Aug. 2 veto message, “If enacted, this legislation would substantially increase the burden on executive agencies when promulgating rules without providing the financial support to do so.”

State Senator Howard Pearl (R), one of the bill’s sponsors, argued it would increase rulemaking transparency and “enable an easier process for the public to weigh in on pending rules.”

The law will take effect in December. 

The background 

Republican lawmakers introduced H.B. 1622 on Jan. 3 in the New Hampshire House of Representatives. After being referred to a conference committee, the bill was approved by a voice vote by the New Hampshire State Senate on July 18. Gov. Sununu vetoed the bill on Aug. 2.  

The state legislature reconvened Oct. 10 on a day known as “Veto Day” to reconsider 15 bills vetoed this year by the governor. Legislators overrode two bills with at least a two-thirds majority, including H.B. 1622, which passed 318-11 in the House and 23-0 in the Senate.  

Lawmakers from both parties supported the veto override. In the House, 155 Republican and 163 Democratic lawmakers voted to override the veto, and 11 Republicans voted against it. Twenty-three lawmakers in the Senate voted to override the veto, which included votes from 13 Republicans and 10 Democrats.  

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Ohio enacts education bill reducing licensing requirements, repealing education regulations 

What’s the story? 

An Ohio K-12 education bill went into effect Oct. 24, reducing educator licensing requirements and repealing certain education regulations from the Ohio Revised Code.

Senate Bill 168 included provisions:

  • authorizing local school boards to approve the employment of unlicensed teachers in their district.
  • creating teacher evaluation frameworks at the local level.
  • repealing certain provisions related to the powers and duties of the Ohio Department of Education and Workforce, which includes duties to establish goals for public schools, such as reducing student dropout rates. 

State Sen. Michele Reynolds (R), who sponsored the bill, said it would “eliminat[e] excess and burdensome regulations and [address] teacher shortages.” Matt Dotson, a lobbyist with the Ohio Education Association, argued the bill hurt teacher licensing requirements meant to ensure educators were qualified. 

The background

Senate Bill 168 passed both chambers of the Ohio Legislature on June 26. 

The bill’s introduction came after the Ohio State Board of Education filed a lawsuit against 2023 legislation that transferred its rulemaking and curriculum evaluation powers to the governor-appointed director of the Department of Education and Workforce. The Ohio State Board of Education has 19 members, including 11 elected and eight governor-appointed officials.

The Ohio State Board of Education used to govern the Department of Education, which was renamed the Department of Education and Workforce as part of a 2023 budget bill. The bill shifted duties from the state board to the director of the Department of Education and Workforce. 

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The future of Auer deference following Loper Bright

In a recent post for the Yale Journal of Regulation’s Notice and Comment blog, law professor Chad Aquiteri wrote about the uncertainty surrounding the future of Auer deference following the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo. He argued that although the court overturned Chevron deference, it is unclear if Auer deference remains binding precedent:

What is the status of Auer after Loper Bright? It would seem that Auer is in tension with the overall thrust of Loper Bright. But as a technical matter, the Loper Bright majority and the Kisor plurality focused on different parts of Section 706. And given the recency of Kisor, lower courts should pause before concluding that Loper Bright overruled Auer sub silentio.  

It would be helpful if the Supreme Court soon made clear whether Auer remains entitled to stare decisis. As an initial application of the stare decisis factors stressed in Loper Bright suggests that Auer is no longer deserving of such protection. But whether the Court will be willing to declare as much so soon after Kisor, or will instead require Auer to first undergo a lengthy period of disuse (as the Court seemed to require of Chevron), remains to be seen.

Want to go deeper? 

  • Click here to read the full text of “Auer after Loper Bright” by Chad Squitieri.

Regulatory tally

Federal Register

The Federal Register publishes proposed and finalized administrative agency rules and regulations, policy statements, and interpretations of existing rules every federal working day. The Federal Register’s October highlights are as follows:

Office of Information and Regulatory Affairs (OIRA)

OIRA reviews all significant actions, defined as rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. Significant regulatory actions also include agency rules that may conflict with other regulations or with the priorities of the president. OIRA’s October regulatory review activity included the following:

  • The agency reviewed 39 significant regulatory actions (one rule was approved without changes, changes were recommended for 36 rules, and two rules were subject to a statutory or judicial deadline).
  • As of Nov. 4, 2024, OIRA’s website listed 153 regulatory actions under review.
  • Notable regulation: OIRA concluded its review of an Environmental Protection Agency (EPA) final rule requiring full-service line replacement of lead and certain galvanized service lines under the control of the water system. The rule requires water system replacements within 10 years of the rule’s compliance date. The final rule, titled National Primary Drinking Water Regulations for Lead and Copper: Improvements (LCRI), will take effect on Dec. 30, 2024. The EPA estimated the rule would provide $13.49 to $25.14 billion in annual health benefits by reducing lead exposure. The agency projected annual costs of $1.47 to $1.95 billion for service line replacement, program implementation, and related expenses.
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