A case in point is the recent issuance of the New Source Performance Standard for Coal Fired Plants—a cornerstone of the Administration’s Clean Power Program.
When EPA issued its proposed rule, it was wed to CCS, an unproven technology in view of experts who developed it. Nonetheless the proposed rule presented the technology as being an economically viable technology.
Industry responded in very cogent comments that EPA had the facts wrong; subsequently industry made the same points when the rule was under review at OIRA.
However, where was industry during the Intervening time period? Yes numerous press releases were issued as well as a number of requests for Congressional intervention.
Many of the attorneys advising industry were students of conventional administrative law who believe that the next step was to seek judicial review. What about working the administrative process during the interim time period between issuance of the proposed rule and its review by OMB?
During this interim time period some parties used the prevailing principles of the administrative process to highlight the downsides to EPA of continuing on its proposed course of action:
Establishment of an Interactive Public Docket to solicit public input
Filing a DQA Alert: Letter to EPA Administrator (2/3/14) re: OMB Peer Review Requirements
Presentation of Option: Option for Controlling Greenhouse Gas Emissions from Coal Fired Plants
Presentation of Draft Legal Complaint
EPA issued a final rule with an innovation that was dramatically different from what it proposed. It eliminated the CCS mandate but allowed for the use of an alternative technology which it named but for which it did not offer an operating definition—an opportunity for the regulated community to become equally innovative through a judicious use of the administrative process.
The end result is that it is doubtful that legal challenges will prevail and it is equally doubtful that the final rule will give meaningful relief to the coal industry unless it rids itself of traditional legal advice and attempts to exploit the administrative process during the implementation stage of the rule.
Any resultant inequities in the regulatory system should first be addressed by a vibrant and fully staffed OIRA and only—as a last resort—the courts, thus the need for an OIRA Teaching Module.