The process is not even close to over.
After a draft rule is published, comments from citizens, activists, nonprofits, and businesses begin to pour into the agency. Agency employees hold meetings across the country to explain the rule and ask for people’s criticism. Legally, an EPA employee or contractor must read, categorize, and respond to each of these comments (even if that response is mechanical).
This “notice and comment” period is mandated by the Administrative Procedure Act. After the Obama administration published a draft Clean Power Plan, its signature climate-focused rule for the power sector, the EPA received more than 4 million public comments.
The EPA then modifies the rule again—in response to public comments, to changes in the economy, and to any significant new research on the topic. The administrator and the senior EPA staff run the final rule past the White House again. Finally, it’s published.
“It’s a lengthy process, but it’s also an analytically demanding process for rules of the complexity that EPA typically encounters,” says Jonathan Cannon, who was general counsel at the agency from 1995 to 1998.
Why does this process take so long?
Because the agency knows it will get sued later. After the EPA publishes a new rule, industry groups often try to weaken the regulation and delay its enforcement in court. In these lawsuits, judges will check the thoroughness of the EPA’s “administrative record,” the paper trail of how an idea became a regulation.
“The EPA gets challenged a ton, but they win most of the time,” Ann Carlson, a professor of environmental law at the University of California Los Angeles, told me this month. “And one of the reasons they win, even with conservative courts, is that they’re very careful in really examining the science and building an administrative record that demonstrates expertise, and care, and thoughtfulness.”
“If the agency decides to rescind the Clean Power Plan, the final rule may be quite simple, but it’s got to be based on a record,” Cannon said.
Do the states get a say in regulating pollutants?
Yes. Generally, the EPA establishes a floor for how strictly a pollutant may be regulated. But there is no ceiling: States can go further if they wish.
An exception is the Clean Air Act’s rules on car tailpipe emissions, where only California is allowed to set stricter standards than the EPA. Other states can then opt into California’s tighter rules.
Let’s go back to Congress for a moment. Were there any new environmental laws after Nixon left office?
Yes, but they mostly tinkered around the edges. In 1976, Congress authorized the EPA to regulate toxic chemicals. In 1977, President Jimmy Carter and a Democratic Congress amended the Clean Air Act to ensure that cleaned-up air would stay clean. In 1980, Carter and Congress passed the bill which created a federal “Superfund” for toxic-waste cleanups.