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.
http://netrightdaily.com/2015/08/epa-relies-on-secret-comments-in-no-power-plan-rulemaking/
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