Falling Into Place: How EPA Promulgates Regulatory Rules

September 14, 2022

Like every basic girl, I absolutely love fall! The pumpkin spice, the leaves changing color, the fuzzy socks, the scented candles, literally all the things. While we think about the autumn leaves and apple pies (mmm pie), let’s talk about what EPA has to do for a rule to “fall” into place.

Throughout this blog, I’ve talked a lot about court cases, industry reaction to a specific EPA-made rule, and other similar things. However, I haven’t really explained everything that goes into how EPA makes rules in the first place. In order to understand everything that goes on, both behind the scenes and in front of them, I think it can be important to know how EPA does things.

Sometimes, for a rulemaking to occur, EPA has to base the rule on a variety of statutory factors. For example, when setting Renewable Volume Obligations (RVOs), EPA has to consider many statutory variables before even considering promulgating any sort of rule. Many times, this is the case. When EPA sets a rule, the final result of that rule has to incorporate all statutory factors that were set by United States’ Congress. Once EPA has figured out how to include all the statutory factors, has adjusted industry changes, and has considered any court cases that may set a precedence on how something is set, then EPA can publish a rule.

Once EPA has published a rule (called Notice of Proposed Rulemaking), then the rule is generally subject to a 60 day comment period, following publication in the Federal Register[1]. During this time, all public comments are readily available to the public at large, providing that the comments do not contain copyrighted information, trade secrets or other types of confidential business information. As a side note and for those of you who aren’t legal nerds like me, the Federal Register, is federal electronic publication that is issued on a periodic basis and details rules changes or proposals for any government agency.

After EPA has accumulated all comments on a rule, it will consider the feedback it has received before issuing a final rule. I should tell you, that while EPA may consider comments and industry feedback, it does not mean that EPA will necessarily make changes from the proposed rule to the final rule. However, EPA generally wants people to follow the rules and when possible, will attempt to consider the effects a rule might have on a particular industry. After all of those steps, EPA will publish a final rule in the Federal Register. This is generally the point at where the lawsuits start, and I start having material to write on.

I think there is a general misnomer that EPA works in a vacuum, with little regard to what actually occurs in the industry. EPA has to go through many steps before a final rule is issued. There are even times when EPA calls prominent members in the industry before issuing a rule to either gain further clarity or ask for additional insight.

So why are there lawsuits? For one, there will probably never be an EPA rule that one special interest group or another feel is oppressive to their needs. For another, sometimes, for all of EPA’s considerations, they get it wrong and there are corrections that need to be made. This why the role of the court system plays in administrative agency rulemaking is so crucial. It grants industry members an additional avenue of relief when EPA hasn’t gotten something quite right.

With all of these considerations, EPA generally tries to create a rule that “falls” into place for any industry. Like with the forth-coming Set rule to be proposed in November, taking into account all the things that have to happen, the publication of a final rule can take some time. I’ll just be here, with my pumpkin spice sipping, fuzzy sock wearing self, waiting for EPA’s November Set rules to “fall” into place.

[1] <https://www.epa.gov/superfund/public-comment-process#:~:text=The%20EPA%20considers%20all%20comments,an%20%22as%20received%22%20basis>.