Harvard Environmental Law Review
In environmental regulation as well as in other regulatory domains, a critical question is how outside interests shape the rulemaking agenda. A great deal of skepticism toward regulation stems from the widespread perception that agencies excessively, or even exclusively, cater to business interests. One answer to these concerns is administrative procedure, in particular rulemaking petitions, which are provided for in the Administrative Procedure Act and in many substantive environmental statutes. Although rulemaking petitions could in theory be used by business interests to strengthen their hold on regulatory agenda-setting, a growing number of scholars, highlighting the critical role a rulemaking petition played in the Supreme Court’s 2007 decision forcing EPA action on climate change, have pointed to the potential for rulemaking petitions to combat agency inaction and under-regulation. Despite these warring descriptions, we actually have very little generalizable understanding of how rulemaking petitions operate in practice and to whom the benefits of the institution flow.
In this Article, I take a close look at original data on all the rulemaking petitions submitted to three administrative agencies from 2000 to 2016, statistically tracing petitions’ fates from submission to resolution. I find that, although business interests may participate at a higher rate than public interest groups and individuals, there is little evidence of full-on regulatory capture via petitions. Even in a venue where it would be exceedingly easy to give business interests precisely what they want, agencies remain largely unmoved and evenhanded. The pattern that does emerge—an agency preference for using petitions to inform incremental revision and softening of existing regulations to reflect changed circumstances or new technologies—probably does inure mostly to the benefit of regulated entities, but it is difficult to square these findings with theories of excessive influence or capture of the regulatory process by business interests. At the same time, the findings pour cold water on the more sanguine account of petitions as a tool to advance environmental regulation. Despite the allure of such an account after Massachusetts v. EPA, the reality is that petitions are rarely transformative and will remain so unless significant changes are made to the institution.
Harvard Law School
Daniel E. Walters,
Capturing the Regulatory Agenda: An Empirical Study of Agency Responsiveness to Rulemaking Petitions,
Harv. Envtl. L. Rev.
Available at: https://scholarship.law.tamu.edu/facscholar/1574