This post was originally published on Legal Planet. Reprinted with permission.
Even most lawyers, let alone the rest of the population, are a bit fuzzy on how the regulatory system works. As the Biden administration is gearing up to start a slew of regulatory proceedings, here's what you need to know about the process.
Q: Where do agencies like EPA get the power to create regulations?
A: EPA and other agencies are created by Congress. They also get the power to issue regulations from laws passed by Congress. For instance, the Clean Water Act tells EPA to issue regulations based on the "best available technology" for controlling the discharge of toxic water pollutants.
Q: Who decides whether an agency should start the process to issue a new regulation?
A: Some statutes set deadlines and require agencies to act. In those situations, a court can intervene if the agency misses the deadline. Otherwise, it's mostly up to the agency's discretion whether to start the process (often with a nudge from the White House, of course).
Q: What's the first step in the regulatory process?
A: When an agency has decided to propose a regulation, it prepares an analysis of the costs and benefits of the regulation. If the regulation is considered significant, the agency then sends the proposed regulation and its analysis to the White House.
Q: What happens in the White House?
A: The Office of Information and Regulatory Affairs (OIRA) reviews the analysis. Often, there is some back and forth between the agency and OIRA (pronounced Oh-Eye-Ra). When OIRA has given the go-ahead, the agency moves on to the next step.
Q: What then?
A: The agency next publishes the proposal and asks for public comment. This process is required by a law called the Administrative Procedure Act. When the comment period has closed, the agency works through the comments and revises the regulation. The revision has to pass through OIRA again before the regulation can be issued.
Q: How does the public find out about the final regulation?
A: The final version of the regulation is published, along with responses to any significant comments. Preparing the response document can be a very time-consuming process. An important rule will receive very detailed comments from industry, public interest groups, and often state governments. Each comment requires a careful response.
Q: Presumably, at least some of the affected groups are likely to be unhappy with the final product. You can't please everyone! What can these groups do?
A: The next step is litigation. In the case of a significant regulation, it's almost inevitable that someone will go to court.
Q: Can anyone who disagrees with a regulation sue?
A: No. To get their lawsuit considered by a court, a plaintiff must have standing.
Q: What is needed for a plaintiff to have standing?
A: The basic requirement for standing is "injury in fact." That means that they will actually be injured by the regulation, not just that they're angry about it. Usually, the industry just shows that a regulation will cost them money. But members of the public can also have standing if a regulation will affect air or water quality, or even if it the regulation will result in changes in public lands that they visit.
Q: OK, so once plaintiffs have demonstrated standing, what do they have to show in order to overturn a regulation?
A: One basis for overturning a regulation is procedural. For instance, the Trump administration often tried to skip the period for public comment. Courts regularly overturned the administration's decisions for its failure to follow the required process.
Q: If the agency did follow the required process, does the plaintiff have other arguments?
A: Remember that regulations have to be authorized by laws passed by Congress. So, another way of challenging a regulation is to argue that it's actually not within the agency's legal authority. For instance, an important regulation by the Obama EPA regulated certain wetlands. Plaintiffs argued that the EPA had misinterpreted the statute and that those wetlands weren't actually subject to federal regulation.
Q: How are those legal challenges resolved?
A: Under current law, courts use what's called the Chevron doctrine. Under that doctrine, if the meaning of a law passed by Congress is unclear, courts give the agency's interpretation the benefit of the doubt. This doctrine has been questioned by conservatives on the U.S. Supreme Court, so we may see a change in this approach sometime soon.
Q: If an agency acted within the legal authority given by Congress, does that mean a rule will necessarily be upheld?
A: Not necessarily. Remember that the agency has to justify its action and respond to all significant comments. If the agency's justification contains logical leaps or fails to address important arguments by commenters, the court will send the regulation back to the agency to try again.
Q: How long does this whole process take?
A: A major regulation can take several years before it's issued in final form. The litigation can take another couple of years. Hopefully, all of this results in regulations that are well-grounded and carefully considered. But it's a heavy lift to get there.
Showing 2,821 results
Daniel Farber | June 25, 2021
Even most lawyers, let alone the rest of the population, are a bit fuzzy on how the regulatory system works. As the Biden administration is gearing up to start a slew of regulatory proceedings, here's what you need to know about the process.
Allison Stevens, Laurie Ristino, Maggie Dewane, Steph Tai, Victor Flatt | June 24, 2021
The Center for Progressive Reform stands with all who are working to advance equity and equality for LGBTQ Americans. To commemorate Pride Month, we asked three CPR leaders to weigh in on progress in this area.
Robin Kundis Craig | June 16, 2021
In the first part of this post, I briefly touched on the chaotic history of the EPA and Army Corps' definition and regulation of "waters of the United States" under the Clean Water Act. I also pointed out that this definition and its varying interpretations across courts and administrations can have significant impacts on water pollution prevention and the protection of our nation's waterways. With the Biden administration tackling a redo of the "waters of the United States" rule, court challenges are sure to follow. In this post, I'll explore three approaches to the rule that might help it survive judicial review.
Robin Kundis Craig | June 16, 2021
Recently, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers announced that the regulations defining “waters of the United States” under the Federal Water Pollution Control Act (better known as the Clean Water Act) are once again going to change. The importance of that announcement is best demonstrated through a quick recap of the chaos that has dominated this element of Clean Water Act jurisdiction.
Alina Gonzalez | June 15, 2021
Not long ago, the prospects of offshore wind energy seemed lofty, but the industry is finally taking off. As part of his efforts to combat climate change, President Biden has pledged to double offshore wind production by 2030. This commitment stems from the enormous benefits and potential that wind energy can provide as we transition to clean, sustainable energy.
James Goodwin | June 10, 2021
The Labor Department’s emergency COVID standard, released June 10, is too limited and weak to effectively protect all workers from the ongoing pandemic. Workers justifiably expected an enforceable general industry standard to protect them from COVID-19, and the Center for Progressive Reform (CPR) has been calling for such a standard since June 2020. But what emerged after more than six weeks of closed-door White House review was a largely unenforceable voluntary guidance document, with only health care workers receiving the benefit of an enforceable standard.
James Goodwin | June 9, 2021
In addition to cleaning up our environment, the U.S. Environmental Protection Agency (EPA) must also clean up the mess the Trump administration left behind. The Biden EPA recently took an important step in this direction by finalizing its plan to rescind a Trump-era rule that would drastically overhaul how it analyzes the rules it develops to implement the Clean Air Act. If implemented, Trump's "benefits-busting" rule would have sabotaged the effective and timely implementation of this popular and essential law, which protects the public from dangerous pollution that worsens asthma and causes other diseases. On June 9, the EPA held a public hearing to gather feedback on rescinding the rule. CPR Member Scholars Rebecca Bratspies and Amy Sinden joined me in testifying in support.
Daniel Farber | June 9, 2021
Hurricanes Harvey and Maria. California wildfires. Superstorm Sandy. The great Texas blackout. The list goes on. These mega-events dramatize the need to improve our disaster response system. The trends are striking: escalating disaster impacts, more disaster clustering, more disaster cascades, and less predictability. We need to up our game. Lisa Grow Sun and I discuss the implications in a new paper, but here are a few of the key takeaways.
Clarissa Libertelli | June 8, 2021
World Oceans Day marks a time to reflect on how our oceans connect to human and environmental health. This year’s theme of “Life and Livelihoods” comes at a time when our federal government is turning to energy jobs and climate justice. As the BP/Deepwater Horizon oil spill of 2010 showed, the lives and livelihoods of millions are affected by how we manage ocean policy. Eleven years later, will policy adapt to prioritize human and environmental health over business?