Administrative Severability - A Tool Federal Agencies Can Use to Address Legal Uncertainty
14 September 2023
And if courts have reason to substantially doubt that the agency would have issued the rule absent the invalid portion or that the remainder can function independently, they generally decline to find the rule severable, notwithstanding the agency’s inclusion of a severability clause. [...] Case Law Underscores the Importance of Consistent Severability Discussions in a Rule’s Supporting Analyses In recent years, courts have also looked to various other sources of evidence to answer the two prongs of the severability analysis, including the administrative record and the rule’s structure and stated purpose. [...] Forest Service, the Tenth Circuit looked to the structure of the agency’s environmental impact statement (EIS) as confirming its severability conclusion.18 Determining that the agency had treated the rule as a whole in its EIS, rather than contemplating individual sections, the court found that severance was not appropriate (despite the presence of a severability clause).19 Similarly, the D. [...] EPA examined the agency’s response to public comments in its severability analysis.21 The court found that the agency’s responses indicated that the rule’s provisions were too intertwined to function independently if severed.22 Courts have also looked to the structure and purpose of the rule to inform severability analysis. [...] Azar, the Fourth Circuit declined to sever a rule because of its structure.25 Because the agency labeled the invalid portions of a rule “major provisions,” the court substantially doubted that the remaining portions of the rule could function sensibly on their own.26 These recent cases underscore the fact that severability clauses do not guarantee courts will find a rule severable, just as their a.