(Monday, June 19th is a federal holiday and there are no classes.)
Assignment – Documentary on Rulemaking
Now that you have learned the basics of notice and comment rulemaking, we are going to look at rulemaking in action. This is PBS documentary about a rulemaking that took place in the late 1970s. The EPA was required by the courts to make rules to implement amendments to the Clean Air Act (CAA) that were intended to protect the views in the Grand Canyon and other national monuments from being obscured by pollution. While this rulemaking took place more than 40 years ago, the fights over these rules continue today, and Grand Canyon is still fouled with air pollution. This park service webcam shows a live view of the Canyon. If you select the Clear/Hazy tab, you can see the contrast between a clear day (when the winds blow the pollution away from the park and flying tours are limited) and a hazy day (when the conditions are less favorable and the pollution builds up in the park):
https://www.nps.gov/subjects/air/webcams.htm?site=grca
A major source of pollution in the park in the 1970s was the emissions from coal-fired electric generating plants. The largest was the Navajo generating plant. Over the past decade, the low price of natural gas has undercut the cost of energy generated by coal. Many coal-fired power plants have closed as utilities seek lower-cost electricity. Shifting to natural gas also reduces their carbon footprint because natural gas produces less carbon dioxide produced per kilowatt of electricity than does coal. The Navajo plant was closed in 2019 and was demolished starting in 2021. Unfortunately, other sources of pollution discussed in the film have increased.
The documentary starts with the park ranger whose pictures of the Grand Canyon stimulated environmental groups to lobby for amendments to the CAA. This was a period in US politics that is difficult to imagine today. Broad-reaching environmental laws with ambitious goals had bipartisan support in Congress. Most of the major environmental laws, including the law that pulled the various free-standing pollution agencies into the EPA, were passed during the Nixon administration. Several had the support of Nixon, who hoped to win the support of liberals who opposed him on the Vietnam War. The documentary shows a Congressional hearing with several Congressmen who were the authors of our basic environmental law framework. The bipartisan support for environmental laws was at the same time that Congress and the country were bitterly divided over the Vietnam War and the Civil Rights movement.
The documentary then shifts to the air pollution division of the EPA and the process of drafting the regulations. While the documentary was recorded over 40 years ago, the basic process is essentially the same today. The major change is that today the courts are now much more particular about the published record for the rule, making the drafting process longer and more complicated. Note the arguing over what the vague words in the statute would allow the agency to do in the regulations. We will think more about that when we look at the judicial review standards for ambiguous rules. Also, note the involvement of the Carter White House. The agency was facing both a court-ordered deadline and a political deadline. Carter was mired in the Iranian Hostage Crisis and far behind Ronald Regan in the polls. Regan was to end the bipartisan support for environmental laws, and the agency was concerned that if they did not get the rule finalized before the end of the Carter Presidency, it would be watered down by the Regan administration. (The Regan administration could not completely withdraw the rule because the statute required the agency to make the rule.)
While not required by the APA, the EPA had public hearings on these regs, as well as taking written comments through the usual APA notice and comment process. The hearings were held in the western states most affected by the regs. The bitter testimony against the regs and the EPA could be ripped from today’s headlines. The difference is that in 1979, the fight was over assuring a supply of cheap fossil fuel. Today the fight is over climate change.
As background, in 1973 the country had suffered a gasoline shortage and long lines at the pumps. This was caused by the newly formed OPEC embargoing oil exports to gain control of the market. While that embargo was short-lived, by 1979 OPEC had pushed crude oil prices up 10-fold to $25 a barrel, equivalent to about $100 today. By 1980, they reached their peak at about $140 a barrel in today’s dollars. At that point, OPEC’s power declined as new sources of oil were developed. But no one knew that would happen in 1979.
The fear of another OPEC boycott, combined with the ever-increasing cost of oil led to programs to make gasoline from coal, as Germany had done during WWII when it was cut off from oil imports. This comes up in some of the testimony. As a college student, I participated in earlier CAA hearings, which I can report resembled those in this documentary.
After the hearings and reviewing the public comments, the agency is forced to modify its original rule and to redo some of the background record to be published in the FR. It finally gets the rule finalized – in record time – before Carter had to leave office. This is a revealing look at the agency process and it is unlikely we will ever see another like it. Some of the participants, such as Jim Hawkins, went on to become leaders in the public environmental movement after leaving the government. I have not been able to find out what happened to the photographer who started it all.
One invaluable part of the documentary is the coverage of the lawyers who represented the electric power industry whose coal-fired power plants would bear the brunt of the regulatory costs of these rules. You can see how they represented their clients’ interests and how they interacted with the agency lawyers. You should also note the difference in the office settings between the EPA staff and the industry lawyers.
Video – The Regulators: Our Invisible Government (CSPAN)
Reading Assignments
Part 1
Read Chapter 5 to C. The Procedures for Formal Rulemaking p. 176.
Video – Chapter 5 – What have we learned from The Regulators?
PowerPoint – Chapter 5 – What have we learned from The Regulators?
Video – Chapter 5 – Do You Have to Have Notice and Comment?
PowerPoint – Chapter 5 – Do You Have to Have Notice and Comment?
Read Chapter 5 from C. The Procedures for Formal Rulemaking p. 176. to D. The Procedures of Notice-and-Comment Rulemaking, p. 180.
What do Formal Rulemakings look like – the Peanut Butter Saga
Before Ralph Nader there was the Peanut Butter Grandma – There is no video documentary about formal rulemaking, but there is the story of the fight over making a rule through formal rulemaking to define what could be sold as peanut butter. It is also a great human interest story. Ruth Desmond was a housewife who became the first consumer advocate to fight in the administrative law arena. She started in the 1950s, before Ralph Nader and the world of NGO (non-governmental organizations) advocates.
Her personal story – Veteran of the Peanut-Butter War
A brief review of the legal fight – Why Midcentury Lawyers Spent 12 Years Arguing About Peanut Butter
(Optional) NPR podcast, the third in a three-part series about the peanut butter saga and the role of the Peanut Butter Grandma. (The complete series and supporting information.)
Read E.Procedures for Rules Not Subject to Formal Rulemaking or Notice-and-Comment Rulemaking, p. 187 to 1. Executive Orders, p. 199.
Video – Chapter 5 – Other Exemptions from Notice and Comment Requirements
PowerPoint – Chapter 5 – Other Exemptions from Notice and Comment Requirements
Powerpoint – Chapter 5 – Other Forms of Rulemaking, Constitutional Issues, (Vermont Yankee), Ex Parte Communications
Part 2
Finish Chapter 5. Review Chapter 2. The material on a. OMB/EO Review and b. b.Independent Regulatory Agencies (p. 66 – 69).
The objective of this assignment is to make you familiar with the basics of the regulatory review process. You should know the reasons why it is important, who carries it out, and the basic requirements to satisfy OIRA. You do not need to know the details of cost-benefit analysis. You should know the basic principle that regulations should provide more benefits than costs, that it is more difficult to monetize benefits and costs, and that benefits in the future have a lower value than immediate benefits.
The Regmap – a Review of Informal Rulemaking
This is a graphical review of informal rulemaking. I have used parts of it in the presentations.
Video – Introduction to Cost-Benefit Analysis
Video – Cost-Benefit Scenarios
Video – Discounting the future
These are three short videos that introduce the fundamentals of cost-benefit analysis for those of you who are not with CBA analysis from your other studies. Discounting the future discusses the problem of deciding how much to spend today to prevent problems in the future. This is a core question in rules to mitigate and adapt to climate change.
A short news item I discuss in the CBA introduction below: NBC News: How a single new Alzheimer’s drug could blow up the federal budget.
Video – Chapter 5: Cost/Benefit Analysis Background for Regulatory Review
PowerPoint – Chapter 5: Cost/Benefit Analysis Background for Regulatory Review
Video – Chapter 5: Executive Order and Statutory Requirements for Reviewing Rulemaking
PowerPoint – Chapter 5: Executive Order and Statutory Requirements for Reviewing Rulemaking
Part 3
Read Chapter 6 to 3. Prudential Standing, p. 235.
Much of this assignment should be a review of materials on standing that you covered in Constitutional Law I. I am reviewing this material to make sure that everyone has the same base knowledge. We are going to see these doctrines again as we read cases and pleadings as we work through the remainder of the course.
We will take a deeper dive into standing next week.
Video – Chapter 6 – Introduction and Statutory Jurisdiction
PowerPoint – Chapter 6 – Introduction and Statutory Jurisdiction
Video – Chapter 6 – The Injury Test for Standing
PowerPoint – Chapter 6 – The Injury Test for Standing
Video – Chapter 6 – Probabilistic Risk and Fear as Injury for Standing
PowerPoint – Chapter 6 – Probabilistic Risk and Fear as Injury for Standing
Video – Chapter 6 – Procedural Injuries
PowerPoint – Chapter 6 – Procedural Injuries
Video – Chapter 6 – Causation for Standing
PowerPoint – Chapter 6 – Causation for Standing
“Prudential” tests, such as zone of interest, are confusing. We are going to take a hard look at Lexmark, which is the most recent Supreme Court case to review prudential standing and zone of interests. The Lexmark Court attempts to simplify the notion of prudential standing. Perhaps more importantly, the Justices express their skepticism about the importance of these tests.
Edited – Lexmark International, Inc. v. Static Control Components, Inc. , 134 S.Ct. 1377 (2014)
I have heavily edited Lexmark. While the book mentions Lexmark, it does not integrate Lexmark with the previous zone of interest cases. While zone of interest analysis is not dead, it is now just another statutory construction tool.
Lexmark Oral Argument – Start at 19:15 and listen to the end. (you can search for – couple points about the zone of interest – to go to that point.)
Supreme Court oral arguments have been recorded for decades. They provide examples of oral advocacy at the highest level and they provide insights into the judges thinking that may not appear in the published opinions.
Read Chapter 6 to IV. Problems of Timing, p. 252.
This includes the discussion of the zone of interest cases, which you should read with Lexmark in mind.
Video – Chapter 6 – Exceptions to Judicial Review/Committed to Agency Discretion by Law
PowerPoint – Chapter 6 – Exceptions to Judicial Review/Committed to Agency Discretion by Law
Video – Chapter 6 – Zone of Interests
PowerPoint – Chapter 6 – Zone of Interests