New Executive Order on International Regulatory Cooperation

     Today President Obama issued an Executive Order on International Regulatory Cooperation.  The Order can be found here.

     The essential goal of the new Order is to focus agencies on the burdens created when US regulatory requirements diverge from those of other nations.  Such concerns require a delicate balancing act, reflected in the careful wording of the Order.  International consistency is a value, and varying requirements can burden the ability of US firms to compete internationally.  On the other hand, it is not the only value, and the US should not sacrifice either its autonomy or the regulatory protections it considers important to that goal.  In the words of the Order, the aim is “to reduce, eliminate, or prevent unnecessary differences in regulatory requirements.” Sec. 1 (emphasis added).

     International regulatory cooperation is a longstanding issue that is receiving renewed attention.  The Administrative Conference of the US issued a recommendation back in 1991.  ACUS revisited this topic last year; its 2011 Recommendation is here.  Among other things, the new recommendation proposed creation of “a high-level interagency working group of agency heads and other senior officials to provide government-wide leadership on, and to evaluate and promote, international regulatory cooperation.”

     The new Order pursues this approach, placing international regulatory cooperation on the agenda of the already extant Regulatory Working Group.  It also requires, in certain circumstances and with certain caveats, that executive agencies take account of regulatory approaches to the same problem adopted by foreign governments and, to the extent feasible, appropriate, and consistent with law, avoid unnecessary differences in regulatory requirements.  These responsibilities apply both in promulgating new regulations and in conducting retrospective review of existing ones.

     Cass Sunstein, OIRA Administrator and Regulatory Working Group chair, describes the order and places it in context in an op-ed in today’s Wall Street Journal.  He also has a post on OMB's blog.

     The Administrative Law and Regulatory Practice Section is working on a report and proposed resolution, largely consistent with the ACUS recommendation, that it hopes will be approved by the ABA House of Delegates at the ABA annual meeting in August.

UPDATE: David Zaring, chair of the Section's International Law Committee, has a brief, interesting post about the new order on The Conglomerate blog.

Spring Conference and Council Meeting

The Section's Spring Conference and Council Meetings will take place Friday-Sunday, April 20-22, in Princeton, NJ.

On Friday, April 20, the Section, along with Princeton’s Program in Law and Public Affairs and Center for Information Technology Policy, is hosting a symposium on “The Administrative Agency in the Electronic Age.”  Speakers from the ad law professoriat include Cary Coglianese, Cynthia Farina, Tino Cuéllar, Gregg Macey, Frank Pasquale, and Kevin Werbach.  They will be joined by a passel of dazzling and knowledgeable agency lawyers, including Neil Eisner from DoT, Carol Ann Siciliano from EPA, Laura DeMartino from the FTC, Kathy Conrad from GSA, and the new associate administrator of OIRA, Jeff Weiss.  The luncheon keynote will be given by Theresa Pardo, who runs the Center for Technology in Government at SUNY Albany.  The program is free (unless you want CLE credit, for which Section members receive a discount), though there’s a modest charge for lunch; advance registration is encouraged.  Details and a registration form are available here.

Then on Saturday and Sunday mornings, April 21 and 22, the Section Council will be holding its meetings.  These will take place not at the University but at the Chauncey Center.

This will be an interesting Council meeting.  A full agenda is and materials are available on the Section website.

• revisions to the Blackletter Statement of Administrative Law;
• consideration of three resolutions for the House of Delegates – one on international regulatory cooperation, one on government contractor ethics, and one on disclosure of political expenditures;
• comments to the Office of the Federal Register regarding the pending petition for rulemaking regarding Incorporation by Reference;
• comments on pending legislation requiring the use of plain language in the text of regulations; and
• a report from and conversation with Assistant OIRA Administrator Jeff Weiss.

Finally, on Saturday night there will be the usual Section dinner, which will take place at the Chauncey Center.  Folks are more than welcome at the dinner even if they attend nothing else.  Our special guest will be Jonathan Oberlander,  a professor from the University of North Carolina Schools of Medicine and Public Health who is a visiting fellow at Princeton this year.  Jon is one of the leading contemporary experts on what is perhaps the central domestic policy and legal issue of the day: health care.  There are still spaces for the dinner; you can sign up using the same form as for Friday's panels.

Attorney Openings at the Administrative Conference

Acting Research Director Jeff Lubbers reports that the Administrative Conference of the United States currently has several vacancies. 

The Executive Director position is currently open and the announcement is posted on USAJobs. The announcement will close on January 31, 2012. The announcement is here. 

ACUS also has two openings for attorneys: (1) An entry level position (preferably someone with one year of clerkship or other experience that would qualify for a GS-12), and (2) a senior attorney (GS-14-15) position, with a background and advanced degree in economics, statistics or relevant social science.  Applicants should send an application letter and CV/resume to ACUS General Counsel Shawne McGibbon, by email or by mail at 1120 20th St. NW, Suite 706 South, Washington, DC 20036. These positions are not posted on USAJobs.

ACUS is also looking to fill the Research Director position on a permanent basis as of July 2012.  This job will be formally posted in the near future.  Expressions of interest are welcome.

The Executive Director and Research Director positions are Senior Executive Service positions.

To learn more about ACUS and its current projects visit the website.

Sackett v. EPA and pre-enforcement review of agency orders

Today the Supreme Court heard argument in Sacket v. EPA, No. 10-1062, concerning whether a landowner can obtain pre-enforcement review of an EPA order to remove unpermitted filling of wetlands.  The Ninth Circuit, agreeing with every other court of appeals to decide the issue, had held that such review was unavailable.

Former Section chair Bill Funk offers these comments on the case:

   The media has characterized this case, depending upon their orientation, either as an overbearing government threatening a family for trying to build a house on slightly more than a half-acre of its property or as threat to the ability of the Environmental Protection Agency to take necessary action to protect the environment.  Unfortunately, for those of us who prefer truth to propaganda, neither of these descriptions accurately state what is before the Court. 

   The Sacketts want to build a house on their .6 acre property, and in preparation for that they filled an area that EPA believes is a wetland.  While they might have qualified for a permit for this activity, they did not seek one, and when informed by EPA that it appeared they were violating the Clean Water Act, they did not desist from their activity.  EPA consequently issued a “compliance order,” as authorized by the Clean Water Act, ordering the Sacketts to cease and desist from their filling activities and in addition to remove the fill material and restore the area to its original condition.  The order included the warning that violation of the order might subject the Sacketts to substantial civil or administrative penalties.  The Sacketts then brought suit in federal court alleging among other things that the compliance order was arbitrary and capricious. 

   Whether the Sacketts or EPA are correct is not the issue before the Court.  The issue is simply whether the Sacketts may seek a judicial determination of the correctness of EPA’s order without having to violate that order and risk large civil or administrative penalties in order to obtain a judicial determination of the legality of EPA’s order as a defense to that enforcement action.  EPA, understandably, would like to avoid judicial review until it brings an enforcement action in court.  The threat of huge penalties if EPA is correct often may be enough to force compliance even if the defendant strongly believes that EPA is wrong.  Recall Clint Eastwood’s challenge as Dirty Harry to various perpetrators; “make my day,” he would say, leaving them to guess whether he had another bullet in his pistol. 

   Many environmentalists fear that a decision by the Court in favor of the Sacketts would hamstring environmental enforcement, on the theory that if defendants may delay compliance during lengthy judicial review proceedings, there may substantial harm to the environment, even if EPA eventually prevails.  Moreover, if obtaining judicial review would delay compliance, then defendants might be induced to seek judicial review simply to put off the cost of compliance, even if the defendants knew they were likely to lose in the end.  However, this fear is unfounded.  The Administrative Procedure Act is clear that obtaining judicial review of a compliance order does not by itself relieve a person from the requirement to comply with that order pending judicial review.  That Act provides that a person may seek a stay of the order first from the agency and then from the court if the agency denies the request, but that request will be judged on its own merits.  For example, with respect to the Sacketts, it is unlikely a court would stay EPA’s order to cease and desist from further damage to the alleged wetlands, but it might well stay the requirement that the Sacketts restore the wetlands until a determination of the validity of EPA’s order.  Thus, the judicial review the Sacketts seek would not enable continued harm to the environment during the review proceedings.

   One need not view EPA as a rogue agency, or even as Dirty Harry, to appreciate the need for providing a judicial check on agency action.  Even in good faith EPA has made errors in the past and will again in the future; after all, it is staffed by humans.  Knowing that persons may be able to seek judicial review, rather than be coerced into compliance out of fear of large penalties, provides a healthy incentive for EPA to ensure that its decisions are based on sound facts and law that will be readily upheld in courts.  Absent that incentive, the tendency noted by Lord Acton that power corrupts and absolute power corrupts absolutely could lead an agency to rely more on coercion than law.  It is an essential element of the rule of law that government action be subject to judicial review, and here EPA’s order likewise should be subject to review.

Regulatory Accountability Act to House Floor; White House Threatens Veto

The Regulatory Accountability Act, H.R. 3010, is scheduled to be considered on the floor of the House on Thursday, December 1, 2011.  The controversial bill would make sweeping changes to the APA, particularly with regard to its rulemaking provisions.  Today the White House released a Statement of Administration Policy stating that the President's senior advisors would recommend a veto were the bill to reach his desk.

The Section's extensive comments on the bill can be found here; an executive summary of those comments is contained in this post.

Administrative Procedure Act: ABA Admin Law Section Comments on H.R. 3010

On October 25, the House Judiciary Committee held a hearing on H.R. 3010, the "Regulatory Accountability Act of 2011." Witnesses scheduled at the hearing included C. Boyden Gray, Boyden Gray & Associates (and former Section Chair), Christopher C. DeMuth of the American Enterprise Institute for Public Policy Research, Arnold Baker, owner of Baker Ready-Mix Building Materials, and Sidney Shapiro, University Distinguished Chair in Law at Wake Forest University School of Law.

The Administrative Law Section submitted extensive comments concerning the bill to the Committee. An executive summary of the Section's comments follows.

"The Regulatory Accountability Act of 2011, H.R. 3010, would be a sweeping and consequential revision to the Administrative Procedure Act, particularly with regard to the process of rulemaking. The bill is unusually ambitious and crammed with details that are impossible to summarize. Among its provisions are many that the Section endorses, many it would modify, and many that it opposes.

"With regard to the first category, we support provisions that would

• require agencies to maintain a rulemaking record,
• require agencies to disclose data, studies, and other information underlying a proposed rule,
• recognize the consultative function of the Office of Information and Regulatory Affairs (OIRA),
• provide for agencies to consult OIRA when issuing major guidance, and
• extend these OIRA functions to the independent agencies.

"With regard to the second category, we are sympathetic toward, but suggest modifications to, the bill’s provisions that would 

• add an Advance Notice of Proposed Rulemaking step to certain rulemakings,
• address the problem of agencies’ issuance of “interim” rules that are never superseded by regularly adopted rules,
• provide some centralized oversight of agency issuance of and reliance on guidance documents.

"On the other hand, the Section has serious concerns about

• the bill’s lengthy list of “rulemaking considerations” that agencies would be required to take into account at each stage of the rulemaking process,
• use of the long-discredited “formal rulemaking” for some rules,
• providing for judicial review of agencies’ compliance with OIRA’s guidelines, and
• effectively rewriting the substantive provisions regarding standard-setting in the enabling legislation of numerous agencies through a cost-focused “supermandate.” (We take no position on the substantive question of the appropriate role of costs in setting standards; we only object to resolving that question in a single, across-the-board statute that would turn the APA into the “Administrative Substance Act.”) 

"In general, we think many of the new steps the bill would require for rulemaking are, in numerous particular cases, valuable and appropriate. However, to impose these requirements automatically and across the board will, we fear, further ossify the rulemaking process with little offsetting benefits in the form of better rules."

Administrative Conference of the United States: Oversight Hearing on ACUS

Last Thursday, May 20, the House Judiciary Committee's Subcommittee on Commercial and Administrative Law held an oversight hearing on ACUS. The two panels of witnesses included Justices Breyer and Scalia, as well as two former Admin Law Section Chairs (Paul Verkuil, the new ACUS Chairman, and Sally Katzen of the Podesta Group), Jeffrey Lubbers of American University's Washington College of Law, and Curtis Copeland of the Congressional Research Service. Copies of the witnesses' prepared statements are available on the Committee's website. In addition, Thomas Susman, Director of the ABA Governmental Affairs Office, submitted for the record a letter expressing support for ACUS and attaching an August 2009 list of recommended study topics for ACUS.