As the comment period for U.S. EPA's proposed endangerment finding comes to a close, how important is the notice and comment procedure to the rulemaking process? During today's OnPoint, David Weinberg, chairman of the Environment and Safety Practice Group at Wiley Rein, explains how the recent Natural Resources Defense Council v. U.S. EPA case highlighted the significance of comment periods to federal rulemakings. Weinberg also discusses how the Waxman-Markey energy and climate bill addresses EPA's jurisdiction.

Transcript

Monica Trauzzi: Welcome to the show. I'm Monica Trauzzi. Joining me today is David Weinberg, chair of the Environment and Safety Practice Group at Wiley Rein. David, thanks for coming on the show again.

David Weinberg: My pleasure. I appreciate it.

Monica Trauzzi: David, you recently wrote about the significance of the NRDC v. EPA case, specifically on the federal rule making notice and comment system. It's a system that's been in place for over 50 years. What happened in that case and why do you think that this merits attention right now?

David Weinberg: Well, it's a very good question. The notice and comment procedure was first adopted in the late '40s as part of the Administrative Procedure Act. But it's become much more complex over the years. In the last 15 or so years there have been relatively few federal rulemakings of a major sort of. Now we're at a point in time where we're about to see a huge burst of rulemaking, whether it's under the new climate change legislation or in the banking area or wherever. And a lot of people have forgotten some of the basics that are so important. This decision, while not a major case in the sense of the Massachusetts versus U.S. case or one of the cases that was really driving the legislation, this case underlines how important is when people are writing comments on rules to be very specific and very clear so that they can preserve their rights on judicial review. Now, there's a challenge in writing comments anytime. One has to both be providing the information to the agency and trying to be persuasive about it, but also being very specific so that if a court later has to come to grips with the rules, now the court can see precisely where it is that you were commenting and the issues about which you or your client were worried.

Monica Trauzzi: So, how do you see this specifically impacting the climate change discussion, specifically on the proposed endangerment finding that's being discussed now?

David Weinberg: Well, the Clean Air Act has a judicial review provision in it that parallels but is slightly different than the administrative procedure act. The endangerment finding, which is being made under an existing section of the Clean Air Act, is covered by that particular Clean Air Act judicial review provision. So, the specifics in the NRDC case, that is the requirement that you be very specific in addressing and identifying your concerns before a court will pay attention to them, applied directly in the endangerment contexts. Interestingly, buried in that 900 page Waxman-Markey bill that was reported out a week or so ago and is on the top of everybody's minds, there are a whole series of technical changes. And like most technical changes, and people's eyes glaze over when you flip through them, but one of them is to apply that same set of principles of specificity in rulemaking to all the rulemakings that will be coming forth under Waxman-Markey or whatever version of climate change legislation.

Monica Trauzzi: So, this could be potentially significant?

David Weinberg: They're potentially very significant and something that given the breadth of impact that that legislation will have if it's enacted, something that companies and trade associations and interest groups, all stakeholders are going to have to pay careful attention to.

Monica Trauzzi: Many believe that since the administration has already moved to regulate vehicle emissions they're going to definitely make a final endangerment determination. Is that your sense of how things are going to go and what kind of timeline are you looking at for when EPA may make a final decision?

David Weinberg: I think administrator Jackson has probably gone as far as she can go to promising that they're going to make the endangerment finding. Because they've got a rulemaking proceeding outstanding at the moment, the comment period doesn't close for a few more days. They certainly have to maintain the posture that they have an open mind. But I don't think there's much question about what the administration expects to happen here. Now, the other thing the administration has been clear about though is they see using an endangerment finding under the existing Clean Air Act as very much a second preference to how to address greenhouse gas issues. They would much rather see a new statue in place. And the promulgation of the finding, the endangerment finding is, I think, going to fit very much into that fact. And by that I mean this, things are on track as we record this anyway, for the House to consider the Waxman-Markey bill very soon, maybe before the Fourth of July. Various people in the Senate are reporting that they will move very quickly and use Waxman-Markey as the beginning of the markup of the core bill to start with in the Senate. Now, that's in part to ensure any of the wavering Democrats that they aren't being asked to vote on something that might be a dangerous vote that won't go forward, to say that, yes, the Senate will move it. But the climate change bill is going to have a tough time in the Senate for lots of different reasons. Sometime this fall the administration is going to need something to give it an extra little push to seeing the climate change legislation move. And I suspect that's when we'll see the final decision on the endangerment rule as part of the effort either to move the Congress, to move the Senate presumably at that point or to set the stage little bit more for the U.S. to be able to take a very positive position at the Copenhagen meeting in December.

Monica Trauzzi: Final question here. When we spoke immediately following Obama's election you predicted that the administration would be ushering in this new period of regulation. We've seen aggressive steps from EPA already, but are they moving as you thought they would? I mean they seem to be moving pretty, pretty quickly.

David Weinberg: Well, they are moving quickly. I don't want to say I told you so, although you certainly invite me to do that. I think what you've seen though is the first wave and I think there are two waves of rulemaking activity. The first wave is, by and large, with issues which were staffed out during the transition, putting aside some of the issues associated with economics, which obviously we had other motivators. But on the regulatory side, whether it's at EPA or DOT or other agencies, there were a whole series of issues staffed out and worked up during the transition period. That's where we've seen the action to date. In the meantime, the second-tier administrative officials are now being confirmed. Those folks will take charge in the time period starting now, over the summer, into the fall and of course they'll have the new budget to work with as of October. And that's going to stimulate a whole lot of additional regulatory activity.

Monica Trauzzi: OK, it will be interesting to watch. Thanks for coming on the show.

David Weinberg: My pleasure.

Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.

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