Next generation Sustainability Governance Design Assignment

EPA Regulations and Rulemaking Process

Leonard Miller

ASU Sustainability Governance

January 25, 2021

Rulemaking - How Government Agencies Write Law and Create Policy

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· Congress · Courts

· Executive Branch

Agency Rule Making

Implementation Compliance

Enforcement

Problem Identification

Courts

Policy vs. Rulemaking

• Policy provides direction

• Rulemaking controls or governs conduct/behavior

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Rulemaking is the single most important function performed by government agencies. While Congress and the president provide the general framework for the government mission, rulemaking fills in the details that define the law and delineate how each agency carries out its responsibilities.

(C. Kerwin, former President, American University in his book, Rulemaking)

Simplified 5-step Process of EPA Rulemaking

NPDES program as an example

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EPA did a superb job in getting effluent discharge permits (… NPDES permits …. ) issued under the Clean Water Act in a remarkably short period of time. ….about 80% were either in full compliance or on schedule to be in compliance … marked improvement in water quality in the country’s lakes, rivers, and shorelines.

Russell Train, former EPA Administrator, in his book, An Environmental Memoir

Simplified 5-step Process of EPA Rulemaking

1. Receive the charge

2. Gear up

3. Work up

4. Outside review

5. Promulgate

Then await judicial challenge …

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Receive the Charge

• Understand the underlying need or motivation

• Research the legal authority and operational history

• Determine and propose staffing (including contractors/consultants) and budget requirements

• Seek clarification where needed

• Present to management for ratification and delegation of authority

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Gear Up

• Recruit your team: talents, expertise, offices

• Consider roles: • Other HQ Offices

• Regional offices

• Other Federal agencies

• States

• Gather intelligence on prior efforts – what worked, what didn’t, industry positions and players

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Work Up

• Assemble small groups to address: • Technical standards • Legal authority and standards • Process flow for regulated entities and for government action • Enforcement regime • Communication Plan - outreach, public relations, print • Internal approval process

• Address one-off challenges: design forms, contact federal register, assign code of federal regulations parts

• Determine time-line goals and progress

• Draft/re-draft regulations

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Outside Review

• Produce a working draft

• Seek Internal sign-off and negotiate changes to obtain support

• Publish the approved draft in Federal register and a formal comment period with possible hearings

• Establish a Correspondence Control system

• Expect special requests from companies, trade associations, environmental groups, politicians and agency management

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Promulgate

• Review/catalog all comments and develop a mechanism to relate the comments to the proposed draft

• Consider revisions, decide on changes to be made and develop the rationale for changes or holding firm

• Publish the final regulations with an explanation of the response to comments received and justification for final action

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Challenges

• Courts

• Companies

• Citizen groups

• Compliance education

• Congress

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