R. Andrew Schwentker · August 2008
76 GEO. WASH. L. REV. 1444 (2008)
Traditionally, government agencies have been able to consider policy concerns such as lack of funding and resources when deciding whether to issue rules. Agencies could therefore decide not to promulgate rules for unfunded mandates. In Massachusetts v. EPA, the Supreme Court reversed the Environmental Protection Agency’s (“EPA”) denial of a rulemaking petition, rejecting EPA’s policy reasons for not regulating greenhouse gas emissions. EPA, however, did not include lack of funding as one of its justifications for declining to regulate greenhouse gas emissions. The Court’s decision thus raises the question of whether it would consider lack of funding a sufficient reason for failing to regulate.
This Essay argues that there remain circumstances under which EPA could refuse to regulate greenhouse gas emissions, justifying its decision on lack of funding. The Essay concludes that lack of funding is still a valid reason for deciding not to regulate. Even in the wake of Massachusetts v. EPA, agencies can still refuse to promulgate rules because a mandate is unfunded.
