For more than a decade, academics have suggested agencies are increasingly avoiding notice and comment rulemaking because the process has become “ossified” by procedures imposed by Congress, courts and the Executive Branch, and because the rules ultimately issued by agencies are frequently challenged. This article reviews the rules the United States Environmental Protection Agency (EPA) issued between 2001 and 2005 to determine the validity of those criticisms. With regard to judicial challenges, 75% of EPA’s most important (“economically significant”) rules issued between 2001 and 2005 were challenged in court. This is consistent with the anecdotal claims of former EPA Administrators that 80% of their rules were challenged in court.
With regard to the “ossification” of the notice and comment rulemaking process, while academics have claimed the “ossified” process often takes 3 to 5 years, the rules issued by EPA between 2001 and 2005 were generally finalized within 1.5 to 2 years. In addition, it did not take EPA much longer to finalize rules subject to the most stringent procedural requirements imposed by the Executive Branch and Congress than it took to finalize rules not subject to those procedures. This does not necessarily mean, however, that EPA’s rulemaking process is “deossified.” In fact, one might predict the time it would take EPA to finalize rules would decrease if the agency were avoiding notice and comment rulemaking for particularly contentious rules due to “ossification” or the potential for legal challenges. More study is, therefore, necessary to determine whether EPA’s rulemaking process is truly becoming “deossified.”
Stephen M. Johnson, Ossification’s Demise? An Empirical Analysis of EPA Rulemaking from 2001-2005, 38 Env't. L. 767 (2008).