Abstract
The rulemaking power of the Environmental Protection Agency (EPA) is among the most significant and controversial functions performed by them.
One of the most relentless and significant issue in rulemaking by the EPA is the procedural delay in the promulgation of rules. This research paper examines the factors that impact rulemaking by the EPA by focusing on the bureaucratic elements, political impacts and legislative requirements that may have an impact on the passage of time in rulemaking.
Introduction
The Environmental Protection Agency (EPA) obtains its rulemaking authority from Congress. Congress “delegates” its Article 1 authority “to make all laws” to the EPA and this is done by either by: first, extensive grants of authority that are part of the mandate that is given to the EPA when it was established or through periodic reorganizations; or second, specific statutes that empowers the EPA, an independent agency of the federal government to regulate certain areas, such as protecting the air or water quality, for example, the Clean Air Act or the Clean Water Act.
Through legislation, the role of Congress is to direct the EPA to carry out policies as this gives the EPA broad directives and leaves the details to them to handle, but it must include a rationale as to why the rules need to be implemented. However, as these rules are delegated to the EPA, they can then formulate the rules within the confines of that delegated power. These rules then carry the force of law, but can still be overturned by Congress as Congress still has the highest authority.
These rules can also be challenged by the Courts, where the rules have been overruled or confirmed. Several public health and environmental groups support the EPA and rely on them for the creation of a better world, whilst other critics feel that the agency violates governmental overreach by putting unneeded regulations on corporations and property owners.
The Early Sessions of Congress in Delegating Rulemaking
The major angst of administrative law is the exercise of delegated power. Almost 50 years ago, President Richard Nixon assembled with a Democratic Congress to pass laws that changed the everyday experience of nearly everybody residing in the United States . He assembled a loose mix of officials with extensively varying institutional backgrounds from numerous existing regulatory agendas and named it the Environmental Protection Agency (EPA) . Essential to the notion of a single integrated agency was the belief that an interdisciplinary perspective was fundamental to coherent environmental policymaking.
Although, in the haste to bring together an agency to implement the striving regulatory agendas that Congress was passing at very fast speed , the early frontrunners of the EPA had insufficient time to think about how to organize the decision-making process most efficiently in taking control of the challenging standpoints needed for rigorous environmental decisions. For example, the first few significant regulations of the first National Ambient Air Quality Standards and the first round of the technology-based standards under the Clean Water Act were mainly products of single offices within the emerging EPA administration, and they emulated very limited effort from experts in the other programs. Initially, each office was so busy struggling to stay up-to-date with its own program that few mid-level specialists supervised the activities of their colleagues in the other systematic offices.
In contrast to the preceding governmental traditions of the Progressive and New Deal eras, Congress proposed the new health and environmental agencies to be pre-emptive promulgators and enforcers of rules, instead of neutral adjudicators. In the delegating of special powers to EPA, Congress compelled that the agency regulates significant elements of industrial life in important ways. This act had to be carried out through informal rulemaking, a procedure done simply by providing the public with notice of the terms of the agency’s proposal, allows them an opportunity to comment on the proposal, and provides the agency reasons for accepting its final rule along with its responses to significant pensive public comments.
EPA’s wide ranging discretionary powers did not go uncontrolled for a long run. As the federal courts of appeal started hearing challenges to the agency’s initial regulations, a body of administrative law began to evolve around the arbitrary and capricious test for substantive judicial review, and the hard look doctrine came into place as a more considerate view of the role of court review.
Furthermore, President Nixon developed the “quality of life” performance standards review process for administering the EPA rules to internal checks within the administration, and the process slowly evolved into the vastly structured, but always controversial “Office of Management and Budget” (OMB) review process presently in effect under Executive Order 12866 . Eventually, Congress has upheld a critical interest in the formulation of regulations by the EPA, and its oversight of EPA decision-making has continuously been acute and highly demanding of the political appointees to lead the agency. However, the impact of each of these external institutional individuals on the rulemaking of the EPA rulemaking varied from time to time and their united influence has been vast .
The demands of external review and the practical requirements of carrying various outlooks within EPA pertained to the decision-making process determined upon, to a considerable degree and the framework of that process. As the EPA developed, high ranking officials in the agency chose what decisions were to be made within the agency, and those decisions significantly affected apportionment of power within the institution. Majority of the ground battles waded in the EPA has always been over institutional power. A great deal can be learnt from the virtual status of the EPA or any other administrative agency sub-units by analyzing the structure the agency’s decision-making and taking note of who launches the rulemaking initiative; who may take part in the rule drafting and its practical support details; who can slow down the development of the rule; who is responsible for making sure that the rule is promulgated within a reasonable period of time; who has the power to veto a rulemaking action; and at what cost. These leading points mentioned are influenced by the apportionment of institutional authority.
The Internal Framework of Rulemaking
This EPA’s evolving internal decision-making structures connect to the agency’s principal function of promulgating rules. Primarily, it recognizes that the New Deal notion of the “expert agency” crumbles in the current intricate scientific framework of health and environmental regulation. An agency focusing on, economic, and technological matters must set in motion various kinds of expertise that no individual EPA employee completely understands all the issues concerning regular rulemaking.
There is no person within the EPA that has an absolute expertise in all of the vital areas. The administrator is normally a specialist with some expertise in any applicable subject. The EPA staff can generally provide prominent political appointees with a basic awareness of the relevant macro-issues; however, the EPA decision-makers have to still depend heavily on the staff’s insight of experienced nuances. They must have confidence in the staff out of basic necessity, to make the right decisions on the scores of micro-issues that might lay the foundation for impending judicial claims.
The enactment of a rulemaking initiative relies to a considerable degree upon the ability of the institution to incorporate the contributions of extensively changing expert outlooks into a single comprehensible concept. This is the principle of the bureaucratic pluralism that has inevitably emanated to control the rulemaking process in present social regulatory agencies. Nevertheless, the concern is not as straightforward as simply requesting the unencumbered.
Delegating Rulemaking Power Under the Current Administration
The Trump administration specified through its proposed budget and choice of appointees that it opts from abiding the status quo. There have been delays or overturns for a dozen regulations, It proposed a 31% budget cuts to the agency’s budget to $5.7 billion from $8.1 billion cutting down jobs in the EPA .
At present, the EPA enacts and enforces tolerable pollution limits, and it sets up timetables to compel violators into line with the standards. A significant aspect of the agency’s work since nearly of the specifications is current and industries ought to be given reasonable time, generally thirty days after its publication in the federal register to conform to the new rules or a chance to ask the agency to repeal the rule.
The EPA also has the power to organize and fund research and anti-pollution efforts of state and local governments, private and public groups, and educational institutions. Furthermore, regional EPA offices develop, propose, and implement approved regional programs for comprehensive environmental protection activities. While today the EPA delegates some responsibilities like monitoring and enforcement to U.S. state governments, it retains the authority to enforce policy through fines, sanctions, and other measures granted by the federal government.
Reference
- Dana A. Rasmussen, ‘Enforcement in the U.S. Environmental Protection Agency: Balancing the Carrots and the Sticks,’ Environmental Law 22, no. 1 (1992): 333-348
- EPA. “Reorganization Plan No. 3 of 1970”
- The Guardian: Origins of the EPA. “EPA Historical Publication”. EPA. Spring 1992
- Hiroko Tabuchi. ‘What’s at Stake in Trump’s Proposed E.P.A. Cuts’. New York Times. (April 10, 2017).
- Glicksman, Robert, and Christopher H. Schroeder. ‘EPA and the Courts: Twenty Years of Law and Politics.’ Law and Contemporary Problems 54, no. 4 (1991): 249-309. doi:10.2307/1191879
