In 2010, the Environmental Protection Agency (EPA) promulgated the Tailoring
Rule. The Rule “tailors” the numeric triggers for permitting requirements in the
Clean Air Act by revising the numbers upward by several orders of magnitude.
EPA argued that doing so was necessary to avoid the impossible administrative
burden that would result from having to carry out the plain text of the Act as
applied to greenhouse gases. At first glance, the Tailoring Rule seems to be a classic
case of an agency exceeding its authority and subverting congressional intent. Upon
further examination, it becomes clear that EPA is grappling with an important issue
that current administrative law doctrine fails to adequately address: What should an
agency do when it does not have the resources to carry out all of its required duties?
This Note argues that courts should use the rationale of administrative necessity to
allow agencies to openly demonstrate that it would be impossible to fully carry out
their nondiscretionary statutory duties. Upon that demonstration, courts should
allow agencies to promulgate regulations that propose a solution to that
impossibility.
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