Democracy, Rulemaking, and Outpourings of Comments
This commentary was originally published by The Regulatory Review. Reprinted with permission.
Ten years ago, I wrote an essay referring, in now quaint terms, to the “torrents of E-Mail” arriving on regulatory agency doorsteps, including several rulemakings that drew over 10,000 public comments. I have since argued that agencies needed to take these expressions of public views and preferences more seriously.
Over the last ten years, the volume of rulemaking comments has only grown. In 2021, the Government Accountability Office reported on the many millions of public comments submitted to rulemaking agencies between 2013 and 2017. The 2017 Federal Communications Commission’s net neutrality rulemaking generated over 20 million public comments, and over 4 million comments were submitted in the Environmental Protection Agency’s 2014 Clean Power Plan rulemaking.
These intermittent tidal waves of comments evidence the public’s hunger to participate in government. They also represent a serious management challenge for agencies, one compounded by reports of comments in certain high profile rulemakings attributed to people who did not submit them or to nonexistent people—not to mention comments submitted by bots. Without question, agencies must filter false and bot comments from their dockets and act to deter …
Originally posted at Notice & Comment, a blog of the Yale Journal on Regulation and the American Bar Association Section of Administrative Law & Regulatory Practice. Reprinted with permission.
On Friday, November 24, Consumer Financial Protection Bureau Director Richard Cordray named Leandra English, the longtime CFPB Chief of Staff, to the post of Deputy Director. Based on legislation specific to the CFPB, that put her in a position to serve as Acting Director upon his departure. Cordray then resigned. A few hours after Cordray resigned, the White House announced that President Trump had selected OMB Director Mick Mulvaney to serve as CFPB Acting Director, invoking the President’s powers under the more general Federal Vacancies Reform Act. Unfortunately, President Trump’s actions may result in needless—and illegal—chaos at the CFPB. The President surely retains the power to choose the next CFPB Director, but only by …
On this 20th anniversary of the regulatory review regime of Executive Order 12,866, the appropriate thing to do would be to take stock. Has centralized regulatory review, on balance, improved the quality of federal regulation or interfered with it? Is this now-extensive regulatory review process worth it, given its costs? Sadly, the opaque quality of the process precludes a definitive answer.
Readers familiar with regulatory review already know that Executive Order 12,866, issued by President Bill Clinton, significantly reaffirmed systematic, centralized White House review of agency rulemaking activity. That Order built on the structure established in President Ronald Reagan’s 1981 Executive Order 12,291, both strengthening and modifying it in important ways. And Reagan’s Executive Order in turn built substantially upon more tentative moves made by Presidents Nixon, Ford, and Carter. EO 12,866 effectively settled three areas of bipartisan consensus (at …
In the Sackett v. EPA decision today, the Supreme Court rejected a broad argument that the Sacketts' constitutional due process rights had been violated when they could not go to court immediately to challenge an EPA order requiring them to remove fill and replant vegetation on their property. But the Court did hold that under the relevant statutes – the Clean Water Act and a broader statute authorizing judicial review of agency action, the Administrative Procedure Act – the Sacketts were entitled to judicial review of EPA's order as soon as EPA issued it. It rejected the agency's arguments that the Act ought to be understood to preclude judicial review until EPA brought an enforcement action in court. In so doing, it limited the usefulness of an important EPA enforcement tool.
The Sacketts' side of the case had a number of sympathetic aspects. Two individuals were up …
On January 9th, the Supreme Court will hear Sackett v. EPA, which concerns whether an individual has a right to a judicial hearing before, rather than after, an agency finalizes a so-called administrative compliance order. The case has important potential to undermine the environmental protection, including the government’s ability to promptly respond to environmental threats such as factory outfalls leaking pollutants into rivers.
The lawsuit involves an Idaho couple, Chantell and Mike Sackett, with a .63 acre property overlooking Priest Lake, Idaho. The Sacketts cleared and filled about a half acre of the property with gravel to ready it for building a house. EPA officials discovered the fill and notified the couple that they had filled a “jurisdictional wetland,” meaning a wetland covered by the federal Clean Water Act. (Mike Sackett has publicly stated that although the property could get “wet” in the spring, it was …
This post is the fifth in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30.
To expand a bit on some of what Bill Buzbee discussed in his excellent analysis of the Boxer-Kerry bill on CPRBlog, it is critical to ensure that the implementation of a new climate change regime is done in a way that is prompt and efficient, but also accountable. An effective bill needs to hold government and private actors accountable for their new climate change obligations and actions. Such accountability is key to ensuring that there is confidence in the new cap-and-trade market and that we actually obtain the greenhouse gas reductions we need. In particular, we should focus on the citizen enforcement provisions of the bill and the management of offsets.
The bill incorporates the Clean Air Act enforcement provisions …
On Friday, the Washington Times went A1 above-the-fold with "Climate bill could trigger lawsuit landslide."
Environmentalists say the measure was narrowly crafted to give citizens the unusual standing to sue the U.S. government as a way to force action on curbing emissions. But the U.S. Chamber of Commerce sees a new cottage industry for lawyers. "You could be spawning lawsuits at almost any place climate-change modeling computers place at harm's risk," said Bill Kovacs, energy lobbyist for the U.S. Chamber of Commerce.
Quite simply, this is a false alarm. One week before the Washington Times "Exclusive" on the citizen enforcement suit provisions in Waxman-Markey, I wrote here about the provisions. They are important, and good. And they're not exactly radical. Every major pollution control statute, including the laws governing water pollution, air pollution, and hazardous waste disposal, authorizes citizens to go to …
On Tuesday, March 31, House Energy and Commerce Committee Chairman Henry Waxman (D-CA) and Rep. Edward Markey (D-MA) released a “discussion draft” of the American Clean Energy and Security Act of 2009 – a climate change bill that will serve as the starting point for long-delayed congressional action on the world’s most pressing environmental program. CPRBlog asked several Center for Progressive Reform Member Scholars to examine different aspects of the 648-page Waxman-Markey bill. This entry, by Nina Mendelson, looks at what the bill would do to reassert the right of citizens to bring suit – either against polluters or against recalcitrant regulators – to enforce the law’s provisions.
By setting solid targets for reducing global warming in a cap-and-trade system and including a host of other helpful provisions, the Waxman-Markey bill is a terrific first contribution to this Congress’s debate on climate change. A less obvious but …
This morning the Supreme handed down its ruling in Wyeth v. Levine. In its majority opinion, the Court rejected the argument of pharmaceutical giant Wyeth that the FDA’s approval of its label for Phenergan effectively “preempted” a tort suit brought against it by a patient claiming that the manufacturer failed to provide adequate warning about the dangers of the drug. The patient, Diana Levine, had the drug administered as part of treatment for a migraine, and ended up having her arm amputated after the drug reached an artery and killed tissue. Professor Mendelson issued the following statement:
Today's ruling is a critical victory not just for Diana Levine but for consumers across the nation. The case marks a setback for manufacturer’s efforts to deny Americans the basic right to go to court when they suffer injuries from flawed products or inadequate warnings.
The Court …
There are two issues kicking around in this discussion: (1) Should state tort law be preempted if there is some sort of federal regulation in place? (2) Which institutions - particularly federal agencies and courts – are legally empowered and/or competent to decide that question? I’d like to chime in on (1), but I hope we’ll delve more deeply into (2) soon.
The effort to preempt state tort law depends in part on myths critiquing the tort system, which Tom McGarity has discussed. Pro-preemption arguments also depend on another myth – that tort lawsuits are unnecessary because we have super-effective federal agencies that can regulate to prevent accidents or injuries from drugs, medical devices, and consumer products. This myth in part motivated the Supreme Court’s recent opinion in Riegel v. Medtronic, where it concluded that some tort litigation over medical devices was preempted by FDA regulation …
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