Understanding Rulemaking: Agencies as Lawmakers, Slides of Administrative Law

Download Understanding Rulemaking: Agencies as Lawmakers and more Slides Administrative Law in PDF only on Docsity! bad Rulemaking Introduction to The Regulators ® Docsity.com Jargon Alert  Rule, legislative rule, or regulation  They all mean the same thing  Has the same effect as a statute passed by the legislature  Non-Legislative rule  Has no legal effect, but shows what the agency thinks the law is  Many names - interpretive rule, guidelines, guidance document, anything but rule or regulation Docsity.com Must the Agency Make Rules?  If the agency has the power to make rules, it still has the discretion on what rules to make and when to make them.  The legislature can put provisions in the agency legislation requiring that certain rules be made, and the timeframe for making them.  The Clean Air Act required rulemaking to flesh out detailed technical standards  Unless there is a legislative directive, it is difficult to get the courts to force an agency to make rules  Not impossible, as we will see latter. Docsity.com Why Make Rules?  Many statutes have too little detail to be enforced without additional rules.  Rules can be used to tailor a statute to new circumstances.  Rules provide a chance for the for the public to participate in the regulatory process  Once promulgated, a rule in binding on every party, reducing the need for adjudications. Docsity.com Uniformity  Rules set up a general framework that treats all parties uniformly  Rules are the fairest way to make big regulatory changes  If the agency does not have rules, it can change enforcement policy from case to case, and is also at the mercy of judges to accept or reject agency standards Docsity.com Agency Oversight  You can control the outcome of rulemaking much easier than that of adjudications  Not Dependant on ALJs  Why is this especially important in LA?  More input from across the agency  Input from the public as well  Directly controlled by agency policy makers Docsity.com The Politics of Rulemaking  Congress often dodges the hardest issues and leaves them to agency rulemaking  Most of these involve cost-benefit analysis  How do you trade off automobile safety with price and fuel efficiency?  Are you more worried about delaying the entry of new drugs or the about allowing the sale of a drug with dangerous side-effects?  Do you want cheap power at the cost of lots of asthma and the Grand Canyon full of smoke? Docsity.com Downside of Rulemaking  Trials can be more flexible in the individual cases  Adjudications are useful when you are not sure what the rule should be and need more info and a chance to experiment  Rules can be so abstract or overbroad that they are expensive or difficult to follow  Like statutes  Agencies can pass rules that Congress would never pass - GHGs. Docsity.com How do you make a Rule?  Publish the proposed rule and what it is based on for public comment  The Federal Register and LA Register are where rules are published first  Review and address public comments and publish these along with any modifications in the rule  Codify the rule after it is effective  Rules are Codified in Code of Federal Regulation and the LA Administrative Code Docsity.com Why Have Public Participation?  Public participation has great political benefit in broadening the acceptability of the rules.  Public comments can identify technical and legal problems with the rules  Publication of proposed rules allows politicians to become involved to protect the interests of their constituents  Public participation limits executive power and makes it more palatable to the courts to have agencies making laws  While the agency may take comments at hearings, it is usually done in writing. Docsity.com Attacking Rulemaking  Once a rule has been properly promulgated through notice and comment, it can only be attacked by attacking the published basis for the rule, and that must be done relatively soon after promulgation.  We will see in the movie how the opponents of the rule work to get their changes made before the rule is finished. Docsity.com