Flexible Rulemaking and the Limits of the Alaska Hunters Doctrine

Abstract

Without limited deference to flexible agency rulemaking by the courts, agencies will be unable to balance enforcement duties with the obligation to contribute to a stable regulatory climate for businesses. The Tenth Circuit in United States v. Magnesium Corporation of America clarified the limits of flexible agency rulemaking by holding that an agency is free to amend its tentative interpretations of rules and regulations without notice and comment.1 The court’s holding arose from a dispute between the Environmental Protection Agency and U.S. Magnesium2 over the Environmental Protection Agency’s inconsistent interpretations of the phrase “[p]rocess wastewater from primary magnesium processing by the anhydrous process” (magnesium wastewater).3 The Environmental Protection Agency’s initial, tentative interpretation exempted several magnesium wastewaters at a U.S. Magnesium processing facility from strict hazardous waste regulations.4 After the Environmental Protection Agency amended its tentative interpretation to include the previously-exempt magnesium wastewaters, U.S. Magnesium challenged the amendment based on the Alaska Hunters doctrine.5 U.S. Magnesium argued that, according to the Alaska Hunters doctrine, an agency may not amend a prior interpretation of a rule without first engaging in notice and comment.