• Prof. Lamdan

Class 4: Introduction to Rulemaking

Read before Thursday, September 5th

Readings for Class 4:


An introduction to our Comment Project Rulemaking


Our proposed rule. The Federal Register lets you know what kind of agency action each entry is. How helpful!

This introduction to rulemaking lesson is a great opportunity to get familiar with the rulemaking process that we'll participate in as a class.


Here's a news story about the proposed rule.


The regulation limits state oversight of and participation in the Clean Water Act (CWA) 401 permitting process required for oil pipeline and other energy infrastructure projects. The 401 permitting process requires states to certify that the permit complies with state regulations. New York and Washington state have denied permits for pipelines and coal terminals over clean water concerns and also air pollution and climate change concerns. This regulation will make it harder for New York to participate in CWA 401 permitting process by:

  1. Preventing states from considering issues beyond water quality issues in their certifications. Considerations like air pollution and climate change would be off the table.

  2. Giving federal regulators the power to decide whether states' certification conditions (additional requirements necessary to fulfill state water law standards) meet the "regulatory definition for a condition." If the conditions fail to meet the regulatory definition, they won't be included in the permit.

  3. Limiting how long states have to consider permit applications. The CWA doesn't provide a specific time limit. (It only says that certification must be within a "reasonable" amount of time that doesn't exceed a year, but not saying when the clock starts.) The regulation specifies that the clock starts when states get a certification request, not when they complete the application.

The agency was directed to start this rulemaking process by a Trump Executive Order called Promoting Energy Infrastructure and Economic Growth (linked below). Remember, agencies can only make rules when Congress or the President enables them to do so.


Here are the primary legal documents. Remember, searching using citations can help you find more relevant materials:

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