Effective EPA advocacy : advancing and protecting your client's interests in the decision-making process / Richard G. Stoll.
2010
KF3775 .S865 2010 (Map It)
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Details
Author
Title
Effective EPA advocacy : advancing and protecting your client's interests in the decision-making process / Richard G. Stoll.
Published
Oxford ; New York : Oxford University Press, [2010]
Copyright
©2010
Call Number
KF3775 .S865 2010
ISBN
9780195398816 (pbk. : alk. paper)
0195398815 (pbk. : alk. paper)
0195398815 (pbk. : alk. paper)
Description
xiv, 170 pages : illustrations ; 24 cm
System Control No.
(OCoLC)662154915
Note
Includes index.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Introduction
1
I.
A Regulatory Machine
1
A.
Born to Regulate
1
B.
Forced to Regulate
2
C.
With Great Power and Wide Discretion
3
D.
Creating Major Incentives for Advocacy
4
II.
Purpose and Scope of This Book
4
ch. 1
A Few Statutes Spawning Thousands of Regulations
7
I.
Major Environmental Statutes and EPA Regulations Mandated by These Statutes
7
A.
Clean Air Act (CAA) (1970) (42 U.S.C. [§][§]7401 et seq.)
9
B.
Resource Conservation and Recovery Act (RCRA) (1976) 42 U.S.C. [§][§]6901 et seq.
11
C.
Clean Water Act, 33 U.S.C. [§][§]1251 et seq. (1972)
12
D.
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as "Superfund"), 42 U.S.C. [§][§]9601 et seq. (1980)
12
E.
Safe Drinking Water Act (SDWA), 42 U.S.C. [§][§]300f et seq. (1974)
12
F.
Emergency Planning & Community Right-to-Know Act (EPCRA), 42 U.S.C. [§][§]11001 et seq. (1986)
13
G.
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. [§][§]136 et seq. (1996)
13
H.
Toxic Substances Control Act (TSCA), 15 U.S.C. [§][§]2601 et seq. (1976)
13
II.
Statutes Not a Cohesive, Integrated Package
14
III.
Judicially-Enforceable Rulemaking Deadlines Compound the Problem
15
ch. 2
The Arduous "Informal" Rulemaking Process
17
I.
Distinct Phases of Rulemaking
17
II.
Federal APA Requirements
18
III.
Judicial "Gloss"
20
IV.
Impact Analyses and Consultation Requirements
21
A.
Executive Order 12866 - Regulatory Planning and Review 58 FR 51735; October 4, 1993
22
B.
Going beyond EO 12866
23
C.
Paperwork Reduction Act (PRA) 44 USC [§][§]3501 et seq. (1980)
24
D.
Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act 5 USC [§][§]601 et seq. (1980)
24
E.
Unfunded Mandates Reform Act (UMRA) 2 USC [§][§]658 et seq. (1995)
24
F.
Additional EO's Requiring EPA to Assess/Analyze Certain Impacts or Certify No Significant Effect Relating to Those Impacts
25
V.
Processes Followed inside EPA Leading to Proposed and Final Rules
25
A.
EPA Organization for Rulemaking
26
B.
Beyond the "Lead Office"
35
C.
Internal Agency Review Process
37
D.
Now and Then, an "ANPR"
37
VI.
EPA Does Not Have the Final Word, for Either Proposed or Final Rules
38
A.
EPA Answerable to the President
38
B.
The OIRA Process under E.O. 12866
40
VII.
The Track of a Regulation from Proposal to Final
40
A.
Initial Proposal in Federal Register
40
B.
Public Comments and Oral Presentations
42
C.
Supplemental Notices Often Follow
42
D.
EPA Meetings with Interested Parties
43
E.
Dealing with Public Comments
44
F.
Particular Attention to Comments from Potential Litigants
45
G.
Prepartion of Final Rule
45
VIII.
Moving Final Rule Package through Intra- and Inter-Agency Review
47
IX.
Codification
48
ch. 3
The Almost Inevitable Judicial Review Process
49
I.
Why a Judicial Review Chapter in a Rulemaking Book?
49
II.
Thumbnail Sketch of Judicial Review Principles
51
A.
Final Rules Presumed Judicially Reviewable
51
B.
Scope of Judicial Review
52
C.
Statutory Construction and Legal Interpretation
54
D.
Procedural Defects
55
III.
What Happens in the Judicial Review Process?
56
A.
Initiating Judicial Review
56
B.
Rules under Review Almost Always Stay in Effect
56
C.
Judicial Process Totally Different from the Rulemaking Process
57
D.
Judicial Review Very Different from the Judicial Trial Process
58
IV.
Key Variables Affecting the Process after Petition for Review is Filed
58
V.
Process Leading to Court Opinion (If There Will Be One)
60
VI.
Unless the Court Upholds EPA 100 Percent, More Rulemaking Often Follows
61
VII.
Even with No Court Ruling, More Rulemaking Often Follows
62
A.
EPA Smells Trouble
62
B.
EPA Has a Change of Heart
63
C.
Parties Challenging the Rule Convince EPA to Consider Settlements
64
VIII.
Administrative Petitions for Reconsideration
64
IX.
Parties in Judicial Review Process Obtain a Preferred Status in Follow-up Rulemaking
65
A.
Preferred Status Example: E-mail Solicitation of Comment
66
B.
At Least a Better "Seat at the Table"
67
ch. 4
"Sub-Regulatory" Decisions: What Are They? And How Can You Find Them?
69
I.
A Constant Need for Clarification and Elaboration
69
A.
Context 1---Potentially Inconsistent or Conflicting Provisions
70
B.
Context 2---"Open-Ended" or Potentially "Boundless" Clauses or Phrases
70
II.
Sub-Regulatory "Guidance" to the Rescue
71
III.
How Does EPA Decide Which Format of "Guidance" to Use?
72
IV.
Process for Issuing Guidance
73
V.
OIRA Review for Guidance Documents
76
VI.
Guidance "Notice-and-Comment" Hardly Equivalent to Rulemaking Notice-and-Comment
77
VII.
Sub-Regulatory Guidance Not "Binding" But Can Be Very Important
77
VIII.
How Can You Find Sub-Regulatory Guidance?
80
ch. 5
Influencing Regulatory Decision-making: Going Way beyond Official Written Comments
85
I.
"Informal Rulemaking" Really is Informal
85
II.
Vote Early and Vote Often
86
III.
Early/Often Advocacy is Officially Encouraged
87
IV.
General Principles
88
V.
The Nature and Extent of Your Opportunities Might Depend upon the Nature of Your Interest in a Rule
94
VI.
The Cognoscenti
95
VII.
How Do You Know EPA is Developing a Proposed Rule That Could Be of Interest to You?
97
A.
Go to the Regulatory Agenda
97
B.
Sign up for Alerts
98
C.
Enter the Blogosphere
99
VIII.
How Do You Know Whom to Target and How Do You Get Your Meeting(s)?
100
A.
Finding the Right People
100
B.
Contacting the Right People
101
C.
Meeting the Right People
101
IX.
Coordinate Your Advocacy Efforts with Others Where Possible
102
A.
Pooling Resources Can Be Cost-Effective and Smart-Sometimes
102
B.
Companies in the Same Industry Might Have Conflicting Interests
104
C.
Companies with Conflicting Interests on Some Issues May Have Aligned Interests on Other Issues
105
D.
"Piling On" Can Be Helpful (in Moderation)
105
X.
Targeting Advocacy on Various Issues to Components within the Agency
106
XI.
Going to OMB (OIRA)
107
A.
How Do You Know a Rulemaking Package Has Been Lodged at OIRA?
107
B.
Remember that OIRA Has Great Power
108
C.
Advocacy Opportunities before OIRA Far More Limited than before EPA
108
a.
Substantive Issues: "Big Picture" and Compliance with Analysis Requirements
108
b.
Procedural Issues: Written Submissions Similar to EPA Advocacy but Oral Contact Drastically Different
110
XII.
Going beyond EPA and OIRA
111
A.
Going to Congress and the Media Might Make Sense---Sometimes
111
B.
Types of Issues Most Amenable to Congressional Help and Types of Assistance You Might Seek
112
C.
Pulling Out All the Stops
114
ch. 6
Preparing Effective Written Comments
117
I.
Your Most Critical Document
118
II.
What About Comments on an ANPR?
118
III.
Form and Format
119
IV.
"Deadlines"
120
V.
Substantive Content Considerations
121
VI.
More on Content
123
A.
Setup for Judicial Review
123
B.
Authenticate Yourself (or Organization) and Your Sources
124
C.
Err on the Side of Inclusion
125
D.
Respond to Your Opponents
125
VII.
Key Considerations for Style, Organization, and Presentation
126
VIII.
Follow EPA's Instructions for Filing
128
IX.
Distribution
129
ch. 7
Influencing and Securing Sub-Regulatory Guidance
131
I.
"Type A" and "Type B" Guidance
131
II.
General Considerations for Both Types
131
III.
Specific Considerations for Type A Guidance
135
A.
Scope Things Out
136
B.
Learn What (If Anything) EPA Has Already Said
136
C.
Make Preliminary Contacts at EPA
137
D.
Evaluate the Pros and Cons of Moving Forward
138
IV.
Moving Forward in Pursuit of Guidance
139
A.
Meet with the Right EPA People
140
B.
Prepare and Send an Excellent Letter Requesting the Guidance
141
C.
Follow up with the Right EPA People
142
D.
Push Gently
143
V.
Points to Consider Once You Receive Your Guidance
143
A.
Guidance Might Be Used to Settle Judicial Review
143
B.
Consider Seeking Rulemaking Codification of Guidance You Like
144
VI.
Specific Considerations for Type B Guidance
144
VII.
What If EPA Issues Guidance You Don't Like?
146
ch. 8
Perpetual Rulemaking Campaigns: Three Examples
147
I.
The Textbook Model
147
II.
The Real World
148
Example 1
Maximum Achievable Delays for "Maximum Achievable Control Technology"
149
Example 2
Periodic 180⁰ Reversals on Periodic Monitoring
155
Example 3
A Not-So-Solid Definition of Solid Waste
159
Index
167