Regulation Battle

Chief Justice John G. Roberts Jr. put the spotlight on the federal government’s rulemaking process this week during the argument in a Clean Water Act case. It prompted a debate of epic proportions — if you work inside the Beltway. The focus was on the unexpected speed in which the Obama administration drafted and finalized an EPA rule that could have a major impact on how the case — about whether runoff from logging roads requires Clean Water Act permitting — comes out. Roberts, and presumably his colleagues, hadn’t anticipated that the rule would be finalized before the argument and he, in particular, was annoyed that the administration did not alert the court to that fact.

Here’s a summary of Roberts’ exchange with government lawyer Malcolm Stewart from a story Greenwire colleague John McArdle and I wrote:

Roberts said the government should have told the court that the final rule was “imminent,” a key piece of information he said was missing in the 875 pages of briefing in the case.

But most pertinently to those who track rulemaking procedures, Roberts seemed to have assumed the length of time it would take to finalize the rule would be much longer.

EPA submitted the rule to the White House’s Office of Information and Regulatory Affairs on Nov. 8. It was finalized 22 days later.


“Is it your experience that proposed EPA rules become final within a couple of months particularly?” Roberts asked Stewart yesterday.

The government lawyer conceded that the stormwater runoff rule “happened more quickly than it usually does” but insisted it was intended to make it easier for the court to decide the case.

“Obviously, it’s suboptimal for the new rule to be issued the Friday before oral argument,” Stewart said. “But it would have been even worse, I think, from the standpoint of the parties’ and the court’s decisionmaking processes if the rule had been issued a week or two after the court heard oral argument.”

Read the full story here.


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