【7】 OMB Watch, Background on the Rulemaking Process, http://www.foreffectivegov.org/files/regs/rcenter/backgroundpdfs/I.-V..pdf (last visited May 20, 2016) (“The regulatory process is unfamiliar to the general public and these agencies are largely unknown. Regulatory issues tend to be technical, detailed, and complex-everything that makes them unappealing topics for the press and public. And yet we are governed by regulations everyday: the standards for drinking water, home cleaning products, cars and trucks (and their parts) and public transportation, the carpeting and flooring in our homes and offices, the safety of electricity usage, and for much more. The work of federal agencies is critically important.”).
【8】 Ralph Jennings, Taiwan’s Year of Deadly Disasters: The Real Damon, Forbes, July 01, 2015, http://www.forbes.com/sites/ralphjennings/2015/07/01/taiwans-year-of-deadly-disasters-the-real-demon/ (last visited May 07, 2016).
【9】 Steven Croley, White House Review of Agency Rulemaking: An empirical Investigation, 70 U. Chi. L. Rev. 821, 824-25 (2003) (“In early 1981, President Ronald Reagan issued his famous Executive Order number 12291. Among other things, Executive Order required agencies to submit to the Director of the Office of Management and Budget (“OMB”) a “Regulatory Impact Analysis” for all of their “major” rules. Executive Order 12291 defines “major” rules as any rule likely to (1) have an annual effect on the economy of $100 million or more; (2) impose a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) have a significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets.”).
【10】Id. at 825 (“For such rules, agencies’ regulatory impact analyses had provided an assessment of the costs and benefits, a calculation of a rule’s net benefits, and a description of alternative courses of action that might achieve the same regulatory goal together with an explanation of the reasons why those alternatives, if cheaper, could not legally adopted. Executive Order 12291 further required agencies to submit regulatory impact analyses twice, once accompanying a given “proposed” form and following the notice-and-comment period, once again for the pending final version of the same rule.”).
【11】Docket ID: FDA-2014-P-2035, Agency: Food and Drug Administration (FDA), Parent Agency: Department of Health and Human Services (HHS), http://www.regulations.gov/#!docketDetail;D=FDA-2014-P-2035 (last visited May 15, 2016).
【13】Massachusetts v. EPA, 549 U.S. 497 (U.S. 2007).
【14】Id. (“On October 20, 1999, a group of 19 private organizations filed a rulemaking petition asking EPA to regulate “greenhouse gas emissions from new motor vehicles under §202 of the Clean Air Act.” Petitioners maintained that 1998 was the “warmest year on record”; that carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are “heat trapping greenhouse gases”; that greenhouse gas emissions have significantly accelerated climate change; and that the IPCC’s 1995 report warned that “carbon dioxide remains the most important contributor to [man-made] forcing of climate change.” The petition further alleged that climate change will have serious adverse effects on human health and the environment. As to EPA’s statutory authority, the petition observed that the agency itself had already confirmed that it had the power to regulate carbon dioxide. ).
【15】Id. (“Fifteen months after the petition’s submission, EPA requested public comment on “all the issues raised in [the] petition,” adding a “particular” request for comments on “any scientific, technical, legal, economic or other aspect of these issues that may be relevant to EPA’s consideration of this petition.” 66 Fed. Reg. 7486, 7487 (2001). EPA received more than 50,000 comments over the next five months. See 68 Fed. Reg. 52924 (2003).”).
【16】Id. (“On September 8, 2003, EPA entered an order denying the rulemaking petition. The agency gave two reasons for its decision: (1) that contrary to the opinions of its former general counsels, the Clean Air Act does not authorize EPA to issue mandatory regulations to address global climate change, and (2) that even if the agency had the authority to set greenhouse gas emission standards, it would be unwise to do so at this time......The agency furthermore characterized any EPA regulation of motor-vehicle emissions as a “piecemeal approach” to climate change, and stated that such regulation would conflict with the President’s “comprehensive approach” to the problem. That approach involves additional support for technological innovation, the creation of nonregulatory programs to encourage voluntary private-sector reductions in greenhouse gas emissions, and further research on climate change—not actual regulation. According to EPA, unilateral EPA regulation of motor-vehicle greenhouse gas emissions might also hamper the President’s ability to persuade key developing countries to reduce greenhouse gas emissions.”).
【17】 Id. (“Petitioners, now joined by intervenor States and local governments, sought review of EPA’s order in the United States Court of Appeals for the District of Columbia Circuit. Although each of the three judges on the panel wrote a separate opinion, two judges agreed “that the EPA Administrator properly exercised his discretion under §202(a)(1) in denying the petition for rule making.” The court therefore denied the petition for review.”).
【18】Id. (“The scope of our review of the merits of the statutory issues is narrow. As we have repeated time and again, an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities.....EPA has refused to comply with this clear statutory command. Instead, it has offered a laundry list of reasons not to regulate. For example, EPA said that a number of voluntary executive branch programs already provide an effective response to the threat of global warming, that regulating greenhouse gases might impair the President’s ability to negotiate with “key developing nations” to reduce emissions, and that curtailing motor-vehicle emissions would reflect “an inefficient, piecemeal approach to address the climate change issue,” Although we have neither the expertise nor the authority to evaluate these policy judgments, it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change. Still less do they amount to a reasoned justification for declining to form a scientific judgment......In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore “arbitrary, capricious, … or otherwise not in accordance with law.” We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding. We hold only that EPA must ground its reasons for action or inaction in the statute.”).
【19】JUSTIA, Rulemaking /Writing Agency Regulations, https://www.justia.com/administrative-law/rulemaking-writing-agency-regulations/ (last visited May 20, 2016).
【20】U.S. v. Florida East Coast Ry. Co., 410 U.S. 224, 234 (1973) (“In United States v. Allegheny-Ludlum Steel Corp., supra, we held that the language of s 1(14)(a) of the Interstate Commerce Act authorizing the Commission to act ‘after hearing’ was not the equivalent of a requirement that a rule be made ‘on the record after opportunity for an agency hearing’ as the latter term is used in s 553(c) of the Administrative Procedure Act. Since the 1966 amendment to s 1(14)(a), under which the Commission was here proceeding, does not by its terms add to the hearing requirement contained in the earlier language, the same result should obtain here unless that amendment contains language that is tantamount to such a requirement.”); See Scott Rafferty, Section News and Event, 35-SUM Admin. & Reg. L. News 20, 21 (2010) (“Professor Jeffrey Lubbers of Washington College of Law observed that, except for rate cases, Congress has all but eliminated formal rulemaking…The Magnuson-Moss Act required the FTC to use special procedures with built-in time lags, causing some rulemakings … to last almost a decade. Where Congress has provided exemptions, the FTC has obtained public input and completed significant rulemakings within 4-7 months.”).
【21】 Connecticut Light and Power Co. v. Nuclear Regulatory Comm’n, 673 F2d. 525, 531 (D.C. Cir. 1982) (“The purpose of the comment period is to allow interested members of the public to communicate information, concerns, and criticisms to the agency during the rule-making process. If the notice of proposed rule-making fails to provide an accurate picture of the reasoning that has led the agency to the proposed rule, interested parties will not be able to comment meaningfully upon the agency's proposals. As a result, the agency may operate with a one-sided or mistaken picture of the issues at stake in a rule-making. In order to allow for useful criticism, it is especially important for the agency to identify and make available technical studies and data that it has employed in reaching the decisions to propose particular rules.”).
【22】MCI Telecomm’n Corp. v. F.C.C., 57 F.3d 1136, 1142 (D.C. Cir. 1995) (“[A]n agency may not turn the provision of notice into a bureaucratic game of hide and seek.”).
【23】State of Maine, Guide to Rule-making, http://www.maine.gov/sos/cec/rules/guide.html#public (last visited May 20, 2016) (“Interested persons may also submit comments at a public hearing. When required by other statutes or when requested by 5 persons, an agency must hold a hearing on its proposed rules (5 MRSA sec. 8052 sub-sec. 1). The A.P.A. itself does not otherwise require a hearing; however, an agency always may hold one if it wishes. Since public access and input are major goals of the law, a hearing may be a very useful method of informing and educating the public and for receiving public response.”).
【24】Thomas O. McGarity, Some Thoughts on “Deossifying” the Rulemaking Process, 41 Duke L.J. 1385, 1400 (1992) (explaining that “basis and purpose” of rule is understood to mean the Agency’s findings of fact and policy judgments).
【25】Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking, 75 Tex. L. Rev. 483, 498-99 (1997) (“To the extent the hard look doctrine has imparted any message to agencies, it is that agencies must collect data and provide analyses to support their rejection of every reasonable alternative to the approach they took and to respond to every plausible argument against their approach.”).
【26】Auto. Parts & Accessories Ass’n v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968) (“[T]he ‘concise general statement of basis and purpose’ … will enable us to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them as it did.”).
【27】Portland Cement Assoc. v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973) (“We are not establishing any broad principle that EPA must respond to every comment made by manufacturers on the validity of its standards or the methodology and scientific basis for their formulation.”).
【28】Id. at 394-95 (“ Manufacturers' comments must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consideration becomes of concern. The comment cannot merely state that a particular mistake was made in a sampling operation; it must show why the mistake was of possible significance in the results of the test.”).
【29】Michael Ray Harris, Standing in the Way of Judicial Review: Assertion of the Deliberative Process Privilege in APA Cases, 53 St. Louis U. L.J. 349, 370 (2009) (“In the years leading up to October 19, 1929, the American economy was a dichotomy. On one hand, the corporate world was booming in the 1920s. On the other hand, neither the working class nor farmers appeared to improve their economic conditions to “any substantial degree in the ten years preceding 1929.”).
【30】Id. at 374 (“As the New Deal progressed under the leadership of Roosevelt, a large number of administrative agencies came into being with the blessing of Congress. These agencies were given enormous legal power to interpret and execute often intricate new laws.”); Alexander Dill, Scope of Review of Rulemaking After Chadha: A Case for the Delegation Doctrine?, 33 Emory L.J. 953, 953 (1984) (“[S]ince their widespread introduction during the New Deal, federal administrative agencies have played an increasingly important role in developing and implementing congressional policies in various areas of national concern. Congress has routinely granted broad discretionary authority to agencies in order to accord them the flexibility necessary in highly technical areas of regulation such as nuclear energy and environmental health, as well as in areas of economic regulation such as banking and corporate securities ....”).
【31】See Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. 1189, 1263 (1986) (“The immediate consequence was a barrage of criticism, emanating in part from the American Bar Association, over the inadequacies of agency procedure and the limitations of judicial review.”).
【32】Cass R. Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2072 (1990) (stating that the New Deal reformers sought new institutions better capable of handling modern problems).
【33】Harris, supra note 29, at 353 (“It was this steadfast view in the early 1940s--that a system of checks and balances is an indispensable constraint on administrative power--that helped give rise to the APA in 1946.”).
【34】Michael Asimow, The Influence of the Federal Administrative Procedure Act on California's New Administrative Procedure Act, 32 Tulsa L.J. 297, 297 (1986) (“[T]he APA prescribes the manner in which countless thousands of federal adjudicatory and rulemaking proceedings are conducted each year. In that sense, the APA has achieved quasi-constitutional status.”).
【35】Harris, supra note 29, at 353 (“[I]t is important to see the APA as the modern embodiment of the quintessential American system of checks and balances among the three branches of government.”).
【36】5 U.S.C. § 706 (2002) (“To the extent necessary, the reviewing court shall decide all relevant questions of law, [and] interpret constitutional and statutory provisions. . . .”).
【38】Id. (authorizing courts to “compel agency action unlawfully withheld or unreasonably delayed.”); see also Cass R. Sunstien, Section 1983 and the Private Enforcement of Federal Law, 49 U. Chi. L. Rev. 394, 433 n.149 (1982) (“[T]he APA is generally regarded as creating a right to seek judicial oversight of allegedly unlawful agency inaction”).
【39】Id. at § 551; Administrative Conference of the United States, “Ex parte” communications in informal rulemaking, https://www.acus.gov/recommendation/ex-parte-communications-informal-rulemaking (last visited May 20, 2016).
【41】Joshua K. Westmoreland, Global Warming and Originalism: The Role of the EPA in the Obama Administration, 37 B.C. Envtl. Aff. L. Rev. 225, 243 (2010) (“Congress passed the Administrative Procedure Act (APA) in 1946, designing it to function as the bill of rights for the new regulatory state.”).
【42】Patricia Ross McCubbin, The Risk in Technology-based Standards, 16 Duke Envtl. L. & Pol’y F., 1, 23-24 (2005) (“The Administrative Procedure Act is designed to ensure the accountability of unelected agency officials by requiring all rulemakings to be transparent to the citizenry, the President, Congress, and reviewing courts, thus facilitating the political and judicial oversight necessary to prevent an agency from violating the mandates of its governing statute or from abusing the discretion left to it by the legislature.”).
【43】Principle 10 First Sentence: Environmental issues are best handled with participation of all concerned citizens, at the relevant level.
【44】Principle 10: At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.
【45】Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“Links environmental rights and human rights. Acknowledges that we owe an obligation to future generations. Establishes that sustainable development can be achieved only through the involvement of all stakeholders. Links government accountability and environmental protection.”).
【47】Culvert Cliffs Coordinating Committee v. U. S. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971).
【48】Id. at 1111 (“These cases are only the beginning of what promises to become a flood of new litigation-litigation seeking judicial assistance in protecting our natural environment. Several recently enacted statutes attest to the commitment of the Government to control, at long last, the destructive engine of material “progress.” But it remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role … Our duty … is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy.”).
【64】Bipartisan Congressional Trade Priority Act, H.R. 3830 (“(d) (3) CONTENT.—The guidelines developed under paragraph (1) shall include procedures that—(A) provide for rapid disclosure of information in forms that the public can readily find and use; and (B) provide frequent opportunities for public input through Federal Register requests for comment and other means.”).
【65】Bipartisan Congressional Trade Priorities and Accountability Act of 2015.
【66】Id. (“For example, the legislation requires the USTR to develop guidelines for enhanced consultation with the public and to provide these guidelines no later than 120 calendar days after the legislation’s entry into effect. The legislation also requires the USTR to develop guidelines on consultations with the private sector advisory committees no later than 120 days after the legislation’s entry into effect. The President also would be required to make public other mandated reports on the impact of future trade agreements on the environment, employment, and labor rights in the United States”).
【67】Id (“(1) GUIDELINES FOR PUBLIC ENGAGEMENT.—The United States Trade Representative, in consultation with the chairmen and the ranking members of the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate, respectively—(A) shall, not later than 120 days after the date of the enactment of this Act, develop written guidelines on public access to information regarding negotiations conducted under this title; and (B) may make such revisions to the guidelines as may be necessary from time to time. (2) PURPOSES.—The guidelines developed under paragraph (1) shall—(A) facilitate transparency; (B) encourage public participation; and (C) promote collaboration in the negotiation process. (3) CONTENT.—The guidelines developed under paragraph (1) shall include procedures that—(A) provide for rapid disclosure of information in forms that the public can readily find and use; and (B) provide frequent opportunities for public input through Federal Register requests for comment and other Means.”); Guidelines for Consultation and Engagement Office of the United States Trade Representative, October 27, 2015 (“USTR will issue Federal Register notices for every trade agreement under negotiation encouraging interested members of the public to submit comments, recommendations, or concerns they may have to inform U.S. positions and strategies in that negotiation...USTR will solicit additional public comment as needed if significant new issues arise in connection with a trade negotiation....To maximize public input and exchange, USTR will arrange and host public hearings. These hearings will serve as a forum for receipt of public comments by senior USTR officials and for meaningful exchanges of views.”).