How Long Is Long Enough? Judicial Review of Agency Comment Periods

Federal agencies are granted discretion to shape their rulemaking procedures within the confines of the Administrative Procedure Act (“APA”). Although this flexibility is typically beneficial, it creates openings for agencies to use inadequate procedures that do not meaningfully engage the public, a fundamental purpose of the quasi-legislative rulemaking process. During the Biden Administration, the U.S. Securities and Exchange Commission (“SEC”) proposed an unprecedented volume of major rules with short comment periods, raising questions about agency discretion to set comment periods and the scope of judicial review when a comment period is allegedly insufficient.

This Note surveys approaches to judicial review of comment periods. First, it analyzes the restrictions on review of comment periods imposed by the Supreme Court’s landmark decision Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., which limited courts’ ability to impose additional rulemaking procedures beyond those mandated by the APA. Next, it assesses the standard of review and tests that courts use to review comment periods, including by examining a recent Sixth Circuit decision regarding comment period length of an SEC rule. Finally, it proposes factors for courts to consider when an agency is engaging in a flurry of rulemaking, including (1) interrelated rule proposals, (2) the significance of the rule, and (3) previous agency rulemaking activity.