Class 5: Petitions for Rulemaking ( & Agency Delay & Denial)
Read before class on Tuesday, September 10
In class 4, we transitioned from thinking about environmental governance and why we have administrative law to considering how administrative law works.
We study the APA Section 553 informal rulemaking process from beginning to end, starting with the inception of the rulemaking process. In Class 5, we talk about petitions for rulemaking.
APA Section 553(e) says that "Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." This provision allows people to ask the agency to begin the rulemaking process. Here are a few things to remember, based on our class discussions:
1) Petitioning for rulemaking is different than commenting on rulemaking. Both petitioning for a rule and commenting on a rule are effective ways to participate in agency decisionmaking, but they are not the same:
APA Section 553(c) requires agencies to provide us with the opportunity to comment on a proposed rule. It says "After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation."
APA Section 553(e) gives us the right to petition an agency to start the rulemaking process.
2) LULAC v. Wheeler, our chlorpyrifos case, invokes another petition provision from a different statute (not the APA Section 553 petition for rulemaking).
In LULAC, the plaintiffs petitioned the agency to revoke the tolerances for chlorpyrifos under the Federal Food, Drug and Cosmetic Act (FFDCA) which allows "any person" to "file with the Administrator [of the FDA] a petition proposing the issuance of a regulation establishing, modifying, or revoking a tolerance for a pesticide chemical..."
I assign the LULAC case because it is a Trump era example of how the process of petitioning an agency can unfold. It demonstrates how many years it can take and how politics can impact administrative decisionmaking and the treatment of administrative petitions. Here's how the LULAC petition process progressed:
Plaintiffs filed the initial petition with the agency in 2007
In 2012, the Plaintiffs went to court to get a writ of mandamus. (Writ of mandamus = court order to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.)
EPA responded by promising to take action on the petition by 2014.
In 2015, the Plaintiffs went to court AGAIN, seeking a writ of mandamus. This time the court granted the petition and ordered the EPA to make a determination about chlorpyrifos tolerances. Later in 2015, the EPA proposed a rule revoking chlorpyrifos tolerances.
But the EPA never finalized the revocation, nor did it deny the petition. The court ordered the EPA to take action by Dec. 30, 2016. The EPA requested an extension, and the court granted a 3-month extension.
In 2017 (post Trump) the EPA denied the petition.
Litigation and advocacy are ongoing...
This petition process stretched over a decade and involved layers of litigation. Imagine if you lack the time and resources to pursue your petition for years, in and out of court.