Public Institutions

Class 3: Petitions for Rulemaking (starting the rulemaking process)

Where were we?

3 things agencies do (there are other things agencies do, but let’s focus on these):

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• Rulemaking
• Adjudicating
• Investigating

Remember the donuts?

Some potential regulatory schemes:

• Limiting how many donuts people can take and what kinds of things they are allowed to do with them
• Punishing people who take too many
• Tracking where the donuts are to protect people from “donut deserts” (not “donut desserts,” which are delicious)
• Making people pay to remediate their donut consumption (allowing people to take as many as they want but making them pay for the harm they cause)
• Balancing donut consumption costs and benefits to make plans about how people use common resources
• Limiting the number of people who can access and take donuts

How would agencies enact these schemes?

There are procedures

Let’s start with some definitions

(5 U.S.C. § 551)

Scope of the Procedures:�They apply to “agencies”

So what is an AGENCY?

APA § 551(1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include

(A) the Congress;

(B) the courts of the United States;

(C) The governments of the territories or possessions of the United States;

APA Definitions (5 U.S.C. § 551)

(5) ''rule making'' means agency process for formulating, amending, or repealing a rule;

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(7) ''adjudication'' means agency process for the formulation of an order;

Rulemaking + Adjudication:

2 types of agency decisionmaking

”quasi” powers

Question: Why can Congress delegate these “quasi” powers to agencies?

Answer: Because politics.

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(Article I of the Constitution, which says that, “All legislative powers herein granted shall be vested in a Congress of the United States. . . .” but FDR said

“Non-

Delegation Doctrine”

Rulemaking is formulating, amending or repealing a “rule”…

(4) ''rule'' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefore or of valuations, costs, or accounting, or practices bearing on any of the foregoing;

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Rulemaking is prescriptive like the legislative process, concerning future conduct.

(7) “adjudication” means agency process for the formulation of and order

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(6) “order” means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing

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In adjudication, agencies apply existing rules to particular facts, aka past or continuing conduct

(like courts)

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3 Types of Rulemaking

• Informal rulemaking (most common, 3 step process including notice, comment, and explanation of final rule in Federal Register)
• Formal rulemaking (similar to adjudication process)
• Hybrid rulemaking (procedures added to 3 step informal rulemaking process)

HYBRID =

EXTRA AGENCY REQUIREMENTS*

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* Hybrid requirements are often found in statutes and triggered by certain activities/thresholds (NEPA’s environmental impact statements for significant environmental consequences, Paperwork Reduction Act review before requesting information from the public…)

5 U.S. Code § 553. Rule making (Abridged)

(b) General notice of proposed rule making shall be published in the Federal Register …

(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.

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A little § 553 legislative history

An administrative agency is not ordinarily a representative body. Its deliberations are not carried on in public and its members are not subject to direct political controls as are legislatures.

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Public participation in the rule-making process is essential in order to permit administrative agencies to inform themselves and to afford safeguards to private interests.

Let’s get it started!

3 Types of Rulemaking

• Informal rulemaking
• Formal rulemaking
• Hybrid rulemaking

The many influences on rulemaking

• Congress
• White house
• Public
• Lobbyists
• Advocacy orgs
• Courts
• Etc…..

Agency

Agency decides how to prioritize/who to listen to or put first

Petitions for Rulemaking are Built into the Rulemaking Process

5 U.S.C. § 553(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.*

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*Remember, enabling statutes are also a source of petition power. They may add extra petition requirements/rights to this 553 informal rulemaking process.

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A little § 553 legislative history

An administrative agency is not ordinarily a representative body. Its deliberations are not carried on in public and its members are not subject to direct political controls as are legislatures.

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Public participation in the rule-making process is essential in order to permit administrative agencies to inform themselves and to afford safeguards to private interests.

Initiating Rulemaking

What if the agency doesn’t pick up the phone? Is it allowed to do that?

Dua Lipa made rules for breaking up.

Similarly, Congress made rules for rulemaking in its hit single, APA Section 553.

In other words, what happens when an agency ignores your petition?

Besides crushing despair

What’s supposed to happen…

If an agency denies your petition it should promptly notify you

5 U.S.C. § 555(e) Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial.

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If an agency ignores your petition,

they are violating the APA

• 5 U.S.C. § 551(13) “agency action” includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act…
• 5 U.S.C. § 704 A person suffering … adversely affected or aggrieved by agency action … is entitled to judicial review thereof.
• 5 U.S.C. § 706 To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall
• (1) compel agency action unlawfully withheld or unreasonably delayed;

You can sue!

How does a court decide when agency rulemaking delays justify court intervention?

Telecommunications Research & Action Center v. Federal Communications Commission

“Hexagonal Contours” to determine whether delay is reasonable�(Otherwise known as the TRAC factors)

1. Was the time the agencies took to make its decision governed by “rule of reason”?
2. Did Congress provide for a specific timetable or other time-related language?
3. Was the delay reasonable (economic regulation) or unreasonable (health/welfare protection) in context?
4. Will expediting one action will impact competing interests? What is the effect of expediting this decision?
5. What are the nature and extent of the interests prejudiced by the delay?

[Court need not find any impropriety “lurking” behind agency lassitude to determine that the delay is unreasonable.]

Why don’t courts like exercising jurisdiction over cases like these?

Because the agency hasn’t finished its decisionmaking processes

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• No agency record to review
• No final agency action

It’s incomplete

Pesticide Action Network North America (PANNA) v. EPA

First, what is a Writ of Mandamus?

• A court order telling a government official (like an agency head) to properly fulfill their official duties or to correct an abuse of discretion.
• Congress gave courts the authority to issue writs of mandamus in the All Writs Act, 28 U.S.C. § 1651, which allows courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
• Writs of mandamus are considered “extraordinary remedies” that courts justify granting only in “exceptional circumstances.” In the context of agency delay, mandamus is only warranted when an agency’s delay is egregious.

What’s going on in this case?

The timeline

(just for “egregious-ness”’s sake)

• Ps petition EPA to revoke chlorpyrifos tolerances was initially filed in 2007. EPA does not act on the petition. In 2012, Ps petition the court for a writ of mandamus to force EPA to take action.
• EPA presents court with timeline promising to take action on the petition by 2014, so court dismisses the mandamus petition.
• In 2015, Ps again petition for mandamus, which court grants this time. (The case we read!)
• Later in 2015, EPA finally acts on Ps’ petition and proposes rule revoking chlorpyrifos tolerances!
• But then, EPA continues to delay and never takes a final action.
• Court orders EPA to take final action by Dec. 30, 2016. In June 2016, EPA requests a 6-month extension, but court only grants a 3-month extension.
• New administration: Trump’s EPA issues an order reversing its position and denying the P’s 2007 petition on the merits, leaving chlorpyrifos tolerances in effect.
• Ps move for further mandamus relief arguing that the 2017 order failed to respond adequately to the 2007 petition.

That’s a decade!

Q. Why do these groups care about chlorpyrifos?

A. Because it’s terrible

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[The insecticide chlorpyrifos affects the nervous system of people, pets, and other animals the same way it affects the target pest. Signs and symptoms can appear within minutes to hours after exposure. These effects can last for days or even weeks. Exposure to small amounts of chlorpyrifos can cause runny nose, tears, and increased saliva or drooling. People may sweat, and develop headache, nausea, and dizziness. More serious exposures can cause vomiting, abdominal muscle cramps, muscle twitching, tremors and weakness, and loss of coordination. Sometimes people develop diarrhea or blurred or darkened vision. In severe poisoning cases, exposure can lead to unconsciousness, loss of bladder and bowel control, convulsions, difficulty in breathing, and paralysis.]

Applying the TRAC Factors in the

2015 Case (PANNA v. EPA)

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What’s different now than in 2012?

P.S. Does the “rule of reason” seem like a solid, explicable rule or more like court vibes? [aka what is a reasonable agency petition reaction?]

Finally, in 2021

(original petition filed in 2007.)

Some questions to explore

• Did the court tell the agency what to do about chlorpyrifos?

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• Did the court tell the agency that it must do something?

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How are these two messages different and why does the difference matter?