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@Fritz: I am familiar with Mass v. EPA, Norton v. SUWA, etc. and am very familiar with the APA. Of course, all of those authorities concern FEDERAL procedure, not Maryland state procedure, so they do not control whether a Maryland state agency must follow a directed rulemaking statute enacted by the Maryland legislature.

But even if they did, no federal case I am aware of recognizes the authority of administrative agencies to refuse to issue regulations when Congress has explicitly instructed them to do so (i.e. did not vest the agency with discretion to decide whether to regulate). In particular, the SUWA case was premised on the notion that the BLM had exercised its properly-delegated (from Congress) discretion not to manage lands in a certain way. The fact that Congress had vested the agency was discretion was key in that opinion. Same with Webster v. DOE and other cases.

I'm not sure why you think that Mass. v. EPA supports the position that an agency can disobey a directed rulemaking statute enacted by the legislature. I read Justice Stevens' opinion completely the other way.

If federal procedure law governed the MTA matter and if the MD legislature directed MTA to consider "adopt[ing] regulations to facilitate the transportation of bicycles on board passenger railroad services" (or used similar language vesting the agency with discretion re whether to facilitate the transportation of bikes on trains), then I would agree with you. But it didn't. Barring some other legislative language explicitly vesting MTA with discretion, I agree with Matt Johnson on this one.

by todd on Dec 11, 2009 10:08 am • link • report