June 01, 2015

Speak Loudly and Carry a Small (Memory) Stick: Capitalizing on Public Comments in an Era of Significant Agency Rulemakings

James M. Auslander and John G. Cossa

The title of this article very well could have been Teddy Roosevelt’s other favorite slogan. That is, had he been equipped with the Administrative Procedure Act and the modern federal bureaucracy. (And, of course, a computer.)

Federal environmental and natural resource agencies are undertaking new rulemakings at a whirlwind pace—perhaps as great as at any other time in recent memory. Agencies are proceeding with myriad changes to long-standing regulatory programs established under decades-old statutes to deal with contemporary environmental and natural resource issues. In the vacuum of congressional inaction, the executive branch is attacking through the regulatory process new, emerging issues like climate change, renewable energy development, unconventional oil and gas development, energy import and export, habitat conservation, and global electronics supply chains. For example, the Environmental Protection Agency (EPA) recently proposed its Clean Power Plan, greenhouse gas (GHG) standards for existing power plants, and planned regulations for the emissions of methane associated with oil and gas development. At the same time, the Bureau of Land Management proposed a new suite of regulations overhauling the system of renewable energy leasing and development on public lands; the Bureau of Ocean Energy Management proposed new offshore oil spill, blowout prevention, and Arctic drilling regulations; and the Fish and Wildlife Service accelerated its push to list dozens of new threatened and endangered species across the country and began the process for identifying, managing, and regulating activity in its eagle conservation areas.

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