Guest Editorial
By NATHAN MEHRENS | aUGUST 12, 2015
EPA relies on secret comments in No Power Plan rulemaking
After the release of the Obama Administration's much-publicized "Clean Power Plan" regulations, reports have indicated that the regulatory process that went into developing this "Plan" may not have been as transparent as touted. Environmental extremist groups were apparently regularly communicating and coordinating with officials at the Environmental Protection Agency (EPA), the agency developing the "Plan," regarding the regulations that comprise the "Plan." These regulations restrict carbon emissions from power generation facilities.
This is certainly not the first time that they have done this. In other contexts we've seen a very cozy hand-in-glove relationship between environmental extremists and the agency personnel that regulate us. In response to a Freedom of Information Act request filed by my organization, Americans for Limited Government, it was revealed that several of these groups were working very closely with the EPA on issues surrounding the handling of coal ash.
This is not how the regulatory process was designed to work. The way it is supposed to work is straightforward:
(1.) the agency hosts public meetings to discuss the subject that is to be regulated;
(2.) the agency is to then take the comments provided in the stakeholder meetings into consideration when developing a proposed regulation;
(3.) after a proposed regulation is developed, it is to be published in the Federal Register and a period of public comment, typically not less than sixty days, is to occur;
(4.) after receiving public comment on the proposed regulation, the agency is to then develop a final rule. This final rule needs to provide a reasoned analysis of how the agency made the decisions it made when finalizing the regulation.
If these steps are followed, then a good deal of deference is provided by the courts to the agency in any litigation challenging the regulation. The regulatory process is supposed to be open and transparent, and the regulations are to be developed using information that is public — not information supplied in secret by activists.
Based on the reports cited above, it appears that the EPA has not been following the proper procedure in how it is regulating us. This is unfortunate because, in many cases, the extremist environmental groups have spent years developing both contacts within the agency and, in some instances, have developed the "farm team" of personnel who now occupy many of the regulation-writing positions.
This cuts the effectiveness of the general public out of the process, because who are you going to listen to — four million individuals who submit comments on an issue, or the "expert" who has carefully developed a relationship with you in order to be in a position to give you a detailed plan of action when the time is right?
Years ago, the EPA developed a policy prohibiting the kind of secret dealings on regulations that we are now seeing. Apparently, at some point, they decided to ignore this policy.
In response to the 1977 decision of the D.C. Circuit in Home Box Office, Inc. v. FCC, the EPA Administrator developed a policy titled "Ex Parte" Contacts in EPA Rulemaking. This policy is still posted on the EPA's website as part of their regulatory procedures manual.
This policy very tightly mandated that non-public (ex parte) communications regarding pending regulations not occur between regulators and those with an interest in the regulation. In particular, policy advised as follows: "Whenever it is feasible to eliminate private conversations with a person interested in a rulemaking after the rule has been proposed, you should do so. (This would not bar routine status inquiries, etc. — only conversations directed at the merits of the rule itself.) Where this is not feasible, a memorandum to the file should be prepared by the agency participants stating in detail what happened. This memorandum should then be placed in the comment file just as if it were a public comment [emphasis added]."
Based on reports of contacts between EPA personnel and environmental extremists, this policy is no longer being followed by the EPA. This is unfortunate, as it means that the regulations which are promulgated – regulations which are a type of law applying to a wide swath of our entire lives – are being written not in the open, but rather in secret.
Like many problems with the rulemaking process, this is an area that Congress should investigate and fix. No longer should Congress let agencies write regulations in the dark while guided by activists, but instead Congress should do two things: (1.) reclaim its authority to write our laws, and (2.) in those instances where a delegation of rulemaking authority to an agency remains, pass legislation to ensure that any regulations that are promulgated using ex parte communications are unlawful. Doing this will return some small measure of agency accountability to the public.
Nathan Mehrens is president of Americans for Limited Government Foundation.
