The National Nuclear Security Administration (NNSA) held a Surplus Plutonium Disposition Public Comment Meeting on September 4, 2012 at the North Augusta, SC Municipal Building.
By Gretchen Gehrke and Alejandro Paz
A spate of US Supreme Court (SCOTUS) rulings decided this summer will have dramatic and damaging effects on how federal agencies issue and enforce regulations. One decision in particular may substantially impact the influence and leverage of non-federal stakeholders in notice-and-comment rulemaking.
On the surface, the Ohio vs EPA ruling could seem like a welcome change, promoting more influence from public participation in the regulatory process. However, this ruling smacks of a familiar right-wing anti-science playbook, weaponizing a legitimate tool of scientific integrity and transparency to be a deregulatory Trojan Horse.
SCOTUS stacks the deck against agencies
For nearly 80 years, federal agencies have developed most regulations through the notice and comment rulemaking process, in which agencies are required to post proposed rules for public comment and consider the “relevant matter” raised on those comments. Other bedrock laws include further stipulations. The Clean Air Act, for example, requires the EPA to respond to “significant comments, criticisms, and new data.” While no exact definition of “significant” is provided, for decades it has been understood that agencies do not need to respond to comments that are “purely speculative and do not disclose the factual and policy basis on which they rest.” These requirements have produced a high bar—arguably too high of a bar—for public comments to tangibly influence federal rules. However, that high standard was upended, even inverted, with the Ohio vs EPA decision.
The oral argument of the SCOTUS case covered a range of topics, but the 5-4 majority opinion, authored by Justice Gorsuch and joined by Justices Alito, Kavanaugh, Roberts, and Thomas, did not rule on whether EPA had authority to take the action it did, but rather, on whether or not the EPA explained its actions sufficiently in its response to public comments. The dissenting opinion, written by Justice Barrett and joined by Justices Jackson, Kagan, and Sotomayor, explains (p. 6),
So, to be clear, the Court does not conclude that EPA’s actions were substantively unreasonable…Nor could it, given the significant evidence in the record…Thus, the only basis for the Court’s decision is the argument that EPA failed to provide “ ‘a satisfactory explanation for its action’ ” and a “reasoned response” to comments.
It is quite unusual for the Supreme Court to engage in such close scrutiny of public comments and an agency’s response to comment. The Gorsuch opinion highlights just a few specific sentences in a handful of comments, and its decision particularly turns on one sentence in one comment that alludes to the substantive issue at hand in the litigation. As the dissent points out, however, none of the comments actually raised the specific issue being litigated, and the sentences that were identified in the majority opinion were taken out of context and/or not supported by data or analyses. Interestingly, everyone acknowledges that the EPA did consider and respond to those comments, but the majority opinion disagreed that the EPA had responded sufficiently to the comments by explaining its full rationale for not adjusting its action based on the concerns raised in the comments.
This SCOTUS ruling substantially shifts the balance of responsibility between the commenter and the agency, where agencies may now be expected to thoroughly address unsupported concerns raised in public comments.
Deregulation through delay
The most likely outcome from this Supreme Court ruling is deregulation through delay. We expect that the Ohio vs EPA decision will promote more voluminous public comments by potential litigants with more vague arguments unsupported by data and analysis, which will be followed by a flood of lawsuits about a broader range of issues. Agencies may need to redirect funds away from programs and research, impeding progress on regulatory development and implementation, in order to expand comment review capacities and legal counsel to address the influx of litigation.
The Ohio vs EPA ruling dovetails with the recent overruling of Chevron deference and the 2021 Major Questions Doctrine to strip agencies of their power to regulate. With the overruling of Chevron and ready application of the Major Questions Doctrine in cases such as West Virginia vs EPA, agencies are increasingly constrained in their ability to interpret statutory authority and apply their authority to emerging and evolving issues. With the Ohio vs EPA opinion, agencies will be further hampered in their ability to finalize even those regulations that are clearly within an agency’s statutory authority.
Power in participation?
While these rulings serve to shift power to judicial review and stymie rulemaking processes with delays, there may still be a silver lining for advocates for participatory democracy.
The only legally protected form of public participation in the regulatory process is public comment, which occurs at a late stage in the rulemaking process. Until now, the barrier to effectively influence federal regulation through public comment has been incredibly high. “Significant comments” are expected to present new data and analyses on technical issues, which many commenters are not able to provide.
For decades, advocates have used public comments for broad stroke opposition to agencies’ approaches to a given regulation or the problem underlying it. And for decades, many prudent and articulate comments have been disregarded by agencies due to a lack of technical or legal specificity. Now, it stands to reason that agencies will need to read and respond to public comments more carefully, which could result in a greater breadth of comments being meaningfully considered than before the Ohio vs EPA decision.
The silver lining to this largely destructive SCOTUS ruling could be the opportunity for our most foundational form of public participation in rulemaking to become a legitimate venue for sharing broader well-reasoned concerns, ideas, and suggestions with agencies. To harness this opportunity, we advocates must be ready to write compelling and effective public comments. EDGI has recently launched its Public Comments Initiative, with guides to support advocates in these efforts. Check out the guides, share them with your colleagues, and let’s get writing.