Last week, the 9th Circuit Court of Appeals
affirmed a District Court ruling requiring the Department of
Energy to publish in the Federal Register four rules finalized by
the Obama administration, but not previously published.
Energy Efficiency with man holding a tablet computer
The Trump administration DOE tried to take advantage of
DOE's "error-correction rule", which gives DOE time
to fix mistakes in its rules before they are published in the
Federal Register.
The problem with DOE's argument is that the error-correction
rule is clear that error correction is a ministerial task. The rule
explicitly states that, whether: (1) no corrections are suggested;
(2) corrections are suggested but rejected; or (3) corrections are
suggested and accepted, DOE "will" publish the rule in
the Federal Register. The Court of Appeals, like the District
Court, found the use of "will" to be mandatory.
