Rulemaking Inaction and the Failure of Administrative Law

by Sidney A. Shapiro

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Abstract

The Trump administration may be the first presidency to go four years without promulgating new significant regulations to protect people and the environment. Although administrative law protects regulatory beneficiaries when agencies revoke or modify previous rules, those protections evaporate when an agency rejects a rulemaking petition, fails to answer a petition for years, or fails to work on pending regulatory protections. In effect, the courts have outsourced agency accountability for rulemaking inaction to political oversight, but as a defense of the interests of regulatory beneficiaries, political accountability is the “Maginot Line” of oversight. Despite the difficulty of judging an agency’s claim that it has higher priorities or that it needs more time to make a decision, judges should require more detailed explanations. Although less trusting judicial review is not without its problems, the current approach of abject deference to agency inaction ignores Congress’ commitment to protect people and the environment as specified in an agency’s mandate.

Rulemaking Inaction and the Failure of Administrative Law

by Sidney A. Shapiro

Click here for a PDF file of this article

Abstract

The Trump administration may be the first presidency to go four years without promulgating new significant regulations to protect people and the environment. Although administrative law protects regulatory beneficiaries when agencies revoke or modify previous rules, those protections evaporate when an agency rejects a rulemaking petition, fails to answer a petition for years, or fails to work on pending regulatory protections. In effect, the courts have outsourced agency accountability for rulemaking inaction to political oversight, but as a defense of the interests of regulatory beneficiaries, political accountability is the “Maginot Line” of oversight. Despite the difficulty of judging an agency’s claim that it has higher priorities or that it needs more time to make a decision, judges should require more detailed explanations. Although less trusting judicial review is not without its problems, the current approach of abject deference to agency inaction ignores Congress’ commitment to protect people and the environment as specified in an agency’s mandate.