June 01, 2015

Vantage Point

Patrick J. Paul

The Competitive Enterprise Institute observes that the impact of federal regulations currently exceeds 50 percent of annual federal government spending and concludes that if U.S. federal regulation were a country, it would be the world’s tenth largest economy. Currently, sixty federal departments, agencies, and commissions have more than 3000 regulations in development. The U.S. Environmental Protection Agency (EPA) ranks among the top six federal rulemaking agencies, which together account for almost half of all federal regulations. There are in fact so many federal regulations that the government maintains a website on which information on the development of federal regulations and other related documents may be found and in some instances commented upon. The proliferation of federal regulation can be counted on no matter the party in power.

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In this issue, the contributing authors address environmental regulations, including federal agency guidelines, their proliferation, developing technologies used to impact regulatory change, and the use of citizen suits. A wide array of federal environmental regulations, guidelines, and administrative decisions are adeptly addressed and provoke questions about the merits and efficacy of some of those decisions, with a view that many, if not all will inevitably find themselves in court continuing an endless cycle, and ensuring a good future for environmental practitioners.

We start with a discussion of the emergence of Endangered Species Act (ESA) Section 7 Consultation on Agency Rulemakings and a trend pushing the limits of ESA on discrete aspects of other federal environmental laws. The next article focuses on U.S. Fish and Wildlife Service (FWS) proposed rules and policy revising critical habitat under the ESA and observes that these rules and policy would significantly expand the scope of what constitutes critical habitat. A thoughtful discussion on the U.S. FWS Critical Habitat Exclusion policy governing exclusion of lands from critical habitat designation under the ESA follows.

EPA’s Clean Power Plan under the Clean Air Act and unsuccessful judicial challenges filed by industry and a dozen states to prevent EPA from issuing a final rule is discussed next, while a review of the practice of “sue and settle” and its impact on federal environmental policy follows.

EPA’s use of social media and the changing landscape of federal rulemaking, testing the limits of federal lobbying law, while advocating for government policy is our next topic. Whether Facebook, Twitter, or Thunderclap, the modern era of public comment on proposed federal rules is here to stay. One such rule—“Waters of the United States,” promulgated by EPA and the Army Corps of Engineers—forms the subject of the next article, which, following an entertaining discussion of the rule’s history, not surprisingly concludes that it too is likely destined for the courts.

The next article discusses the underlying purpose of public notice and comment rulemaking and offers some suggestions for ensuring that industry comments are effective and well received. From there, we turn to the topic of “iterative NEPA” and its potential benefits and conclude with a focus on EPA’s CERCLA contribution protection guidance.

We hope that the diverse analysis of these topics may stimulate further discussion, and perhaps even some improvement, on and to the development of federal rules, guidelines, and policy.

Patrick J. Paul

Patrick J. Paul is the issue editor of the Summer 2015 issue of Natural Resources & Environment.