What is the test for a petition for review from a decision made without adequate notice and comment?
MultiRegion, United States of America
The following excerpt is from Natural Resources Defense Council v. U.S. E.P.A., 279 F.3d 1180 (9th Cir. 2002):
On a petition for review from an agency decision, we determine in the first instance the adequacy of the agency's notice and comment procedure, without deferring to an agency's own opinion of the adequacy of the notice and comment opportunities it provided. NRDC v. EPA, 863 F.2d at 1428-29. A decision made without adequate notice and comment is arbitrary or an abuse of discretion. See 5 U.S.C. 706(2)(A).
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