December 5, 2012

High Court puts spotlight on speed of rulemaking

From: E&E Publishing/Greenwire

Lawrence Hurley and John McArdle

It’s not often that Chief Justice John Roberts is caught by surprise, but he expressed shock yesterday at how quickly U.S. EPA issued a rule that is likely to have a major impact on how a Supreme Court case is decided.

An exchange between the chief justice and federal government lawyer Malcolm Stewart over the administration’s uncharacteristic speediness in drafting and approving the rule cast a spotlight on the murky world of administrative rulemaking. Critics often say it takes much too long for rules to be approved, except in cases where political officials in the White House step in and speed things up.

The exchange yesterday could also reignite debate over whether the Obama administration is stalling the release of a legally required summary of upcoming new regulations, the publication of which has been on hold since the spring.

Yesterday’s argument focused on whether an EPA rule issued Friday could resolve a dispute over stormwater runoff from logging roads.

The court debated in some detail whether the rule, which says logging roads should be exempt from Clean Water Act permitting, means a 9th U.S. Circuit Court of Appeals ruling finding the opposite should be vacated or whether the case should be dismissed altogether, which would leave the appeals court ruling intact (Greenwire, Dec. 3).

The fact that EPA was planning a rule to address the 9th Circuit decision was known to the justices. In fact, the Obama administration had asked the court not to take up the case back in May on the grounds that EPA was planning to issue a rule (E&ENews PM, May 24).

In a later briefing in the case, in which the administration ended up siding with industry groups and states that wanted the appeals court ruling reversed, the government made it clear it was moving forward with its planned rule.

But what seemed to irk the chief justice was that he didn’t know EPA sent the rule to the White House for approval in November, a move that was reported in Greenwire at the time (Greenwire, Nov. 9).

It was also known, at least within the industry, that the rule was likely to be finalized before the court argument (Greenwire, Nov. 29).

Roberts said the government should have told the court that the final rule was “imminent,” a key piece of information he said was missing in the 875 pages of briefing in the case.

But most pertinently to those who track rulemaking procedures, Roberts seemed to have assumed the length of time it would take to finalize the rule would be much longer.

EPA submitted the rule to the White House’s Office of Information and Regulatory Affairs on Nov. 8. It was finalized 22 days later.

That turnaround was well below the average review time of 62 days for EPA rules submitted for OIRA review during the Obama administration. The average length of review for all rules that have been submitted for OIRA review over the past four years is 54 days.

But some OIRA reviews take much longer, falling into what some critics call OIRA’s rulemaking “black hole.”

For example, two other EPA water rules — one on regulatory clarifications on water quality standards and another on test methods under a national pollutant discharge elimination system — have languished in the OIRA review queue for more than a year.

One proposed rule submitted by the Occupational Safety and Health Administration on exposure to crystalline silica has been under OIRA review since February 2011.

By executive order, OIRA has 90 days to review a rule, along with a possible 30-day extension.

“Is it your experience that proposed EPA rules become final within a couple of months particularly?” Roberts asked Stewart yesterday.

The government lawyer conceded that the stormwater runoff rule “happened more quickly than it usually does” but insisted it was intended to make it easier for the court to decide the case.

“Obviously, it’s suboptimal for the new rule to be issued the Friday before oral argument,” Stewart said. “But it would have been even worse, I think, from the standpoint of the parties’ and the court’s decisionmaking processes if the rule had been issued a week or two after the court heard oral argument.”

Rena Steinzor, the president of the left-leaning Center for Progressive Reform, said she believes Roberts’ concern was warranted. Steinzor’s group has criticized what it believes is the politicization of the federal rulemaking process. Her group has been particularly concerned that OIRA has become a refuge for special interests seeking to avoid regulation.

“I think the real reason [OIRA was] able to finish it so quickly was EPA was trying to do industry a favor,” Steinzor said of the stormwater rule. “They fiddle with time frames when they are rolling things back.”

She pointed out that another rule that moved through OIRA extremely quickly earlier this year involved changes to the poultry inspection process.

“This was the rule that [former OIRA Administrator] Cass Sunstein was running around bragging about before the election, which supposedly was going to save poultry processors $250 million a year,” she added.

But while it may have given the Obama administration a talking point to push back against criticism that it was anti-industry, the poultry rule has been heavily criticized by worker safety and health advocacy groups, Steinzor noted.

She said she hopes that yesterday’s exchange before the Supreme Court will bring renewed focus on OIRA and its review process.

“But, you know, it’s hard to know what else could be done since there already is an executive order that requires them to do things quickly and they ignore it all of the time,” Steinzor said.

‘Career OIRA staff work very closely with the political officials’

Former OIRA Administrator Susan Dudley, who served under President George W. Bush, said she wasn’t familiar with the specifics of the stormwater runoff rule and she doesn’t have any inside knowledge about why it was approved by OIRA in 22 days. But she said political officials in the White House do sometimes influence the speed with which reviews take place at OIRA, and that’s not necessarily a bad thing.

“OIRA is a part of the executive office of the president, and the career OIRA staff work very closely with the political officials in the White House,” Dudley said. “Some people think that’s not right, but they are implementing the president’s wishes. We have to recognize they serve the elected president.”

She noted that sometimes OIRA’s role of being a neutral arbiter of rules and serving an elected president can conflict, but in her experience that doesn’t happen often.

In reviewing the path the stormwater runoff rule took before ending up before the Supreme Court yesterday, Dudley noted that it was never published in the Unified Agenda of Regulatory and Deregulatory Actions.

The unified agenda lists planned new regulations at agencies. It’s often used by business and advocacy groups to plan their response to potential rule changes. But it also could have been a potential avenue for the Supreme Court to receive an earlier heads-up about the stormwater runoff rule.

Although the unified agenda is required to be published twice a year, the Obama administration did not publish a spring edition this year, and the fall edition is late.

Late last month, a group of Republican House members sent a letter to the White House questioning whether the unified agenda was being held back for political purposes.

“This lack of transparency raises questions about the motives behind the Administration’s apparent reluctance to inform Congress and the public about its regulatory plans,” the House Republicans, including Oversight and Government Reform Chairman Darrell Issa (Calif.) and Judiciary Chairman Lamar Smith (Texas), wrote in their letter.

“Due to the impending election, it does raise concerns that the Administration is holding back this information for fear it will be met with dissatisfaction by the public, or even worse, perceived as breaking the Administration’s promise of regulatory reform,” they wrote.

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