Friday, November 07, 2008

Agency Urgency: Rulemakings Like Time Is of the Essence

Normally, agency rulemakings move at a glacial pace (like an old-fashioned, non-retreating glacier). But not these days. Many administrative and environmental lawyers I know have been agonizing over so-called “midnight regulations”: the rules every outgoing Administration ramrods through the pipeline before it’s too late (a pipeline that bottlenecks in times like this). Putting aside what I think of the rules in the pipeline substantively, a couple of non-partisan issues jump out at me here.

First, as evidenced most recently by the Clinton Administration’s midnight rules, court challenges alleging that corners were cut, comment periods were clipped, or costs and benefits were inadequately weighed, almost certainly get to the court house steps with better-than-average prospects. Judges usually are, in my experience, a little more receptive to such pleas under the circumstances. Moreover, the prototypical remand to the agency for better explanations, justifications, or reconsiderations is, in these cases, an almost unconditional victory. The new administration can usually “reconsider” the rule into its grave—or at least let it die quietly somewhere in the recesses of the agency.

Second, as with the Clinton Administration, a little known statute—the Congressional Review Act (CRA)—could prove very handy for the party controlling Congress. Under the CRA, Congress has created a fast track procedure by which any agency “rule” may be killed by a Joint Resolution of Congress. “Before a rule can take effect,” the agency making the rule must submit a “report” on that rule to each house, thereby notifying Congress of its intent to make the rule. For “major rules,” this means they cannot take effect until Congress has had at least 60 session days in which to review the rule and any supporting analyses. (Section 801(d) gives Congress more time if rules are submitted for review while Congress isn’t in session.)

“Major” rules are those that result in an “annual effect on the economy of $100M or more,” a “major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions” (hint: think climate change), or “significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.” In my humble opinion, any of these criteria could be rather elastic in the right hands, especially given the fact that no action by Congress under the CRA “shall be subject to judicial review.”

Moreover, even non-major rules can be undone by Congress under the CRA’s procedures. It states very clearly that “[a] rule shall not take effect (or continue), if the Congress enacts a joint resolution of disapproval . . . of the rule.” And the fast-track process to disapprove any rule is strictly delimited. A supposedly non-major rule that any agency finalizes can be abrogated by a joint resolution passed within 60 session days of its having been submitted to Congress. Thus, with that many days in which to reject/repeal a rule and some shrewd calendar management, Congress could easily run out the clock on the Bush Administration—leaving the Article I, Section 7 "presentment" of any JR of disapproval to a President Obama (who could then sort out which Bush rules he wants to junk). At most, the Bush Administration only has about two weeks from today to get its rules finalized if it wants to ensure it gets the constitutionally-required veto opportunity (see INS v. Chadha) over any CRA joint resolutions. Tick tock!

Finally, I can’t help thinking that the right urgent FOIA requests and, if necessary, urgent FOIA litigation, would be a sure-fire way to busy the Administration’s lawyers with all the work they can handle in this final window. There must be, well, scores of nonprofits out there who would contribute happily to any such effort. It was the ‘Contract with America’ that gave us the CRA originally. It would only be fitting if it contributed, at least marginally, to Change We Can Believe In.