• Prof. Lamdan

Class 8: Ex parte communications in the rulemaking process

Updated: Sep 19, 2019

Read before Tuesday, September 24

Class 8 Supplemental Readings:

Class 8 deals with ex parte communications in rulemaking. In court, an ex parte communication is any communication between a judge, juror, or party to a case that happens without the presence of the opposing party or their attorney. We'll see through the cases we read that ex parte contact is permitted in the informal rulemaking process. Ex parte communications between agency employees and lobbyists/stakeholders are generally allowed because:

  • Rulemaking is a legislative type of activity, not an adjudicative type of activity (lobbyists can meet with legislators, right?!)

  • Nothing in APA Section 553 prohibits ex parte communication in informal rulemaking

Some administrative law experts worry that extensive agency lobbying leads to regulatory capture. Regulatory capture is when agencies, created to advance the public interest, become dominated by the very industries/sectors the agencies are charged with regulating.

Senator Elizabeth Warren wrote this article about the corporate capture of the rulemaking process in 2016. Warren opines that:

"When it comes to undue industry influence, our rulemaking process is broken from start to finish. At every stage, the process is loaded with opportunities for powerful industry groups to tilt the scales in their favor."

She cites a study finding that between 1994 and 2009, "On average, industry groups engaged in 170 times more informal communications with EPA than public interest players—communications that occurred before any proposed rules were even written."

Industry intervention continues throughout the rulemaking process, according to Warren: "As rules wind their way through the process, the lobbying intensifies. When proposed rulemaking notices are published and the public has a formal opportunity to weigh in, their views are quickly buried in an avalanche of detailed, well-funded, well-credentialed comments from industry insiders and their highly-paid allies. Those EPA rules on dangerous air pollutants? Industry groups submitted 81 percent of the comments during the notice-and-comment period. Public interest groups submitted 4 percent." And, "...corporate players are savvy. They have learned that those same judicial review standards can be used to suffocate new rules. They play a sophisticated game—leveraging their own expertise and paying outside experts with purportedly independent credentials to produce long, detailed comments filled with data and analyses, all selectively produced to serve their own interests. This push to bury agencies in detailed, self-serving comments slows the process massively, and their overall dominance of the notice-and-comment process results in rules that are longer, more complicated, and more to the liking of the most powerful players in the game."

Before providing some ideas for solving the problem Warren unearths, she concludes: "To be clear, engaging in informal dialogue, participating in notice-and-comment, and going to court when agencies step out of line are not bad things. But over time, bludgeoning agencies into submission undercuts the public interest. The goal should be to have a system where influence over new rules is measured not by the size of the bankroll, but by the strength of the argument."

Warren suggests simplifying proposed rules, increasing transparency, and leveling the playing field to prevent regulatory capture. Do you have any suggestions on ways to ensure that ex parte communications don't lead to regulatory capture?

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