A blog on practice in the Nation’s second-most powerful court

The power of (strategic) concessions

A decision of the D.C. Circuit this past week shows the power of strategic concessions.

The case involved a federal rule mandating shutoff valves in gas pipelines. The appellants—associations of energy companies—didn’t quibble with the mandate for main arteries, but contested it as to smaller lines.

They won, in part by making four concessions.

Concession 1. In their opening brief, the associations said the law flat-out stripped the agency of power to do what it did. “During oral argument, however, [the associations] conceded the [agency] retains this power.” Good choice, said the D.C. Circuit. The problem wasn’t that the agency couldn’t do what it did, but that it tacked on the small-line requirement as an afterthought to the main-artery rule, citing new data not subject to notice and comment.

Concessions 2 and 3. Protesting, the agency insisted that the analysis for main arteries “was good enough” for main arteries. Of course, said the D.C. Circuit, “[t]he [associations] do not dispute this.” So the agency noted that it had allowed notice and comment on the methodology and data for main arteries. “Again, no dispute,” said the D.C. Circuit. Which forced the agency to make its toughest argument: “the final risk assessment [as to smaller lines] merely expands on and confirms data in the rulemaking record[.]” Not so, held the D.C. Circuit. For smaller lines, the agency had cited entirely new data.

Concession 4. Well, said the agency, “the final rule came as no surprise because [big and small] lines are treated alike by default under preexisting rules.” Once more, the associations refused to take the bait. The associations “cheerfully concede they knew [small] lines would be regulated unless carved out. Their gripe is with the agency’s failure to do an adequate risk assessment in time for peer review and public comment.” The D.C. Circuit agreed.

The point? Wise—and ideally even “cheerful”—concessions can make your opponent defend the indefensible. And that’s how to win.