5 takeaways:
➀ Learn how to cover the federal rulemaking process. “It provides a gold mine of material for investigative journalists,” said Robert Glicksman a professor of environmental law at George Washington University Law School. Because federal departments and agencies have discretion on how they implement a new law, they are pressured by lobbyists and other stakeholders. Pay attention to the formal comment periods, during which industries, companies, unions, advocacy groups and citizens try to bend federal policy to their will. Rules don’t just pop up in the Federal Register. Instead, they proceed slowly along a specified track of proposed and final rules, any one of which can give you stories or sources. Reporters can follow that process and find public comments at regulations.gov. Sometimes an agency’s issuance of a rule is itself a story. But the public comments are also a great way to find sources and identify the winners and losers from any proposed regulatory change. One trick: Search the public comments by state to find sources that will help you localize a national story.
➁ Advocates orchestrate mass mailings of comments. But rulemakers tend to discount those efforts. “When I was in practice many years ago, I was told to go down to the Bureau of Alcohol and Tobacco and Firearms, part of the Treasury Department, to check out the comments of a recently issued BATF proposed rule,” Glicksman said. “… I asked the person in charge to show me the comments. And he pulled out a huge mailbag. … Gigantic thing. Said, ‘Here you go.’ And I said, ‘Really? There are this many comments?’ He said, ‘No, this is the overflow bag.’ And then he took me to a room that was stacked full of probably 20, 30, 40 bags of equal size filled with comments on this proposed rule.” These days, the lobbying campaigns are electronic, but contentious rules can elicit tens of thousands of comments.
➂ Some stakeholder comments can yield important insights. Industry and advocacy groups submit useful analyses that detail how a proposed rule would affect them, the economy, the environment and more. Why do they tip their hands? Because they might want to challenge the rule in court someday, and the courts might throw out a lawsuit if the plaintiff had an opportunity to make its case to the regulatory agency and failed to do so, Glicksman said.
➃ Federal agencies derive their power from Congress — but Congress lets them fill in the details. Federal agencies have no inherent Constitutional authority to do anything. “All of their authority is derived from statutes enacted by Congress and signed by the president,” said Glicksman. But when Congress writes the laws, it’s often a bit fuzzy on the details. While bills must contain what’s known as an “intelligible principle” to guide an agency on implementing a new law, the steps necessary to achieve Congress’ aims often aren’t spelled out. Vagary gives regulatory agencies huge power in every administration.
➄ Regulatory power has long been controversial — and remains so today. In the 1930s, opponents of the New Deal bashed President Franklin Roosevelt’s expanded administrative state as a “headless fourth branch of government, which operated outside the Constitution’s system of checks and balances, and escaped democratic accountability,” Glicksman said. During the Obama and Trump years, those complaints resurfaced, with charges that “agencies are once again out of control and have hijacked governance mechanisms,” he said. Several Supreme Court justices have sided with this interpretation, particularly Justices Brett Kavanaugh and Clarence Thomas. While most rulemaking goes unnoticed, some turn into major policy statements, such as the Obama-era “Clean Power Plan,” which sought to remake the nation’s power system through its interpretation of the Clean Air Act. That rule has bounced around the Obama administration, the Trump administration and the courts ever since.
Speaker:
Robert L. Glicksman, J. B. and Maurice C. Shapiro Professor of Environmental Law, George Washington University Law School
This program was funded by the Evelyn Y. Davis Foundation. NPF is solely responsible for the content.
