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A revised look: EPA rulemaking processes

Abstract

Scholars have not analyzed the decision-making processes (i.e., administrative rulemaking) of the Environmental Protection Agency (EPA) in great detail since the 1990s. Therefore, this paper uses original interview data to examine a contemporary case, the EPA’s Mandatory Reporting of Greenhouse Gases Rule, to offer an up to date perspective on how the agency produces rules. This paper argues that, at the very least, the EPA’s Climate Change Division, part of the Office of Air and Radiation is a quintessential example of effective outreach across all of the stages of administrative rulemaking. The findings from these interviews suggest that understanding the process the EPA uses to produce environmental regulations is particularly relevant for practitioners, politicians, and scholars. Therefore, we suggest that scholars should use this research as a baseline for future scholarship about the rulemaking processes of the EPA.

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Fig. 1

Notes

  1. 1.

    Rulemaking is lawmaking by an agency. An agency rules carries that same weight as a law passed by the U.S. Congress.

  2. 2.

    The point of this project is not to provide a longitudinal study of EPA rulemaking processes over the last 17 years. Instead, the purpose is to document the voices of contemporary participants in EPA rulemaking processes to compare with the works of McGarity (1991) and Furlong (1995).

  3. 3.

    Substantive rules are those rules in which the regulation amounts to new public law (Kerwin and Furlong 2011).

  4. 4.

    The Federal Register is an online publication that contains all rulemaking actions of U.S. Federal Agencies.

  5. 5.

    Following publication of the final rule, lawsuits can be filed. After the agency settles these lawsuits, any final revisions to the rule are published in the Federal Register.

  6. 6.

    This process was supported by Congress and legitimized through the passage of the Negotiated Rulemaking Act of 1990 (ACUS 1995).

  7. 7.

    FACA develops a set of procedures for agencies to develop stakeholder advisory committees that can be contacted during the pre-rule stage of the process in order to provide feedback regarding a given rulemaking (Croley 1996; Kerwin and Furlong 2011).

  8. 8.

    Kerwin and Furlong (2011) argue that the workgroup model is a collaborative process in which agency personnel work together to write a rule. McGarity (1991) suggested that the EPA workgroup brought “together professionals with different perspectives to focus their attention on a regulatory problem and debate the appropriate ways to address that problem” (p. 74).

  9. 9.

    This initiative was an effort by the Clinton administration to produce a more streamlined and cost-effective government through an analysis of individual agencies and government processes (Gore 1993).

  10. 10.

    Less significant rules refer to those rules that do not cost the economy more than $100 million or have any other major economic impacts (Kerwin and Furlong 2011).

  11. 11.

    The Unified Agenda is a semiannual publication of all Federal regulatory actions: http://www.gsa.gov/portal/content/101114

  12. 12.

    The names of interviewees were kept anonymous due to requirements by the researchers’ Institutional Review Board and to protect the confidentiality of participants.

  13. 13.

    The OMB five-point scale categorizes the importance of any given rule from a one to five scale where one designates an economically significant rule; two designates a rule with some other significant impact; three designates a rule with substantial non-significant impacts; four designates a rule with a routine or frequent impact; and five designates a rule with an administrative impact.

  14. 14.

    It is important to note that the EPA has a number of enabling statutes with varying requirements for the agency to develop rules (Furlong 1995; Rinfret and Furlong 2012). However, Furlong (1995) argues that the agency still develops rules across the agency in a similar fashion. Therefore, this research provides some insight into how this process unfolds across the agency.

  15. 15.

    The National GHG Inventory documents the total GHG emissions and sinks in the USA. These data are used to track national trends in GHG emissions and can be used to project future emission levels. The National GHG Inventory does not require individual facilities to report their emissions; rather, the agency uses a series of calculations to determine estimates of GHG emissions (EPA 2011b).

  16. 16.

    As published in the FY 2008 Consolidated Appropriations Act. Consolidated Appropriations Act (2008) 110–161, 121 § 1844, 2128.

  17. 17.

    Agency personnel suggested the outreach coordinator was brought into the workgroup by the team leader and was in charge of preparing a list of external groups that should be either involved directly within the workgroup or at least briefed on the happenings of the group (personal communications with EPA staff 2011).

  18. 18.

    The Compendium is a guide developed by the American Petroleum Institute to provide oil and natural gas producers and manufactures the most feasible methods to monitor and report emissions (Bush 2009).

  19. 19.

    A Regulatory Impact Assessment is one method in which Congress and the White House have limited the discretion of agencies, by requiring them to analyze the costs and benefits associated with a rulemaking and how that rulemaking will impact the economy (Kerwin and Furlong 2011; Rinfret and Furlong 2012).

  20. 20.

    These comments are submitted to the agency and included as a part of the public record with the rulemaking (Kerwin and Furlong 2011). Despite the effort of the agency to contact 20,000+ stakeholders, the agency only received 16,800 comments.

  21. 21.

    Litigants are required to have standing to sue administrative agencies. Although, the courts have interpreted this differently over the years, Kerwin and Furlong (2011) ultimately suggest that any “group, person, or organization must demonstrate either real or potential harm . . . that is attributable to decisions made during the course of a rulemaking” (p. 253).

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Correspondence to Sara R. Rinfret.

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Cook, J.J., Rinfret, S.R. A revised look: EPA rulemaking processes. J Environ Stud Sci 3, 279–289 (2013). https://doi.org/10.1007/s13412-013-0138-8

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Keywords

  • Rulemaking
  • EPA
  • Mandatory Reporting of Greenhouse Gases Rule