Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir. 1978), long one of the perennials of administrative law teaching, is no more. It seems that late last month the First Circuit overruled Seacoast in Dominion Energy Brayton Point, LLC v. Johnson, 2006 U.S. App. Lexis 8205, 2006 WL 820405 (1st Cir., March 30).
Seacost is famous for holding that the words “public hearing” in a statute triggered formal adjudication under sec. 554 of the APA. The idea was that if the issues were sufficiently important, Congress should be understood to have assumed that the agency should use the cumbersome full-dress procedures of an on-the-record adjudication. This was not as strange as it may sound to modern ears, as it followed the influential Attorney General’s Manual on the APA.
Other circuits, however, took a different tack, especially after the landmark case of Chevron v. United States. Those courts held that unless Congress explicitly instructed the agency to hold a “formal” hearing (most commonly by saying that the hearing should be “on the record”) the agency could in most cases choose to proceed by the less onerous, although still quite formalized, “informal” rulemaking process.
That makes the Ninth Circuit the sole remaining outlier, based on Marathon Oil Co. v. EPA, 564 F.2d 1263 (9th Cir. 1977). That rule is probably doomed too.