Behind the final rule’s march to the Federal Register

By Rod Kuckro | 09/25/2015 07:32 AM EDT

Opponents of U.S. EPA’s Clean Power Plan are awaiting the final rule’s publication in the Federal Register so that challenges in both the courts and on Capitol Hill can move ahead.

The rule is steadily moving through the normal, painstaking process at the Office of the Federal Register at the National Archives and Records Administration, according to Amy Bunk, director of legal affairs and policy for the office.

"I’m not familiar at all" with the EPA rule "or the controversy" to curb carbon emissions from power plants, Bunk said in an interview. "I don’t comment on specific rulemakings," she said.


Recently, Senate Environment and Public Works Chairman James Inhofe (R-Okla.) chided EPA Administrator Gina McCarthy about the rule’s whereabouts.

"Are you aware that delaying publication until the end of October interferes with the ability of Congress and the public to challenge the rules before the big show in Paris?" Inhofe asked during a hearing earlier this month. He was referring to the U.N. climate talks in Paris in December (Greenwire, Sept. 16).

McCarthy replied that EPA had sent the rule to the Federal Register on Sept. 4 with publication expected in October.

For comparison, EPA’s Mercury and Air Toxics Standards were issued on Dec. 16, 2011, and were published in the Federal Register 62 days later on Feb. 16, 2012.

It was not the first time Inhofe has suggested that EPA might have slow-walked an important rule for political reasons.

Inhofe intends to use the Congressional Review Act to challenge the rule, and 16 states have legal challenges on tap.

That’s important because what EPA released in early August was not the official version.

A note at the bottom of the rule’s more than 1,500 pages said so: "This document is a prepublication version, signed by EPA Administrator, Gina McCarthy on 8/3/2015. We have taken steps to ensure the accuracy of this version, but it is not the official version."

It is up to Buck’s office to make the changes to the Clean Air Act official.

"We do have a general timeline for publication of documents, but the bigger the document is, the more time it might take us to review and process," Bunk explained.

"Generally, the bigger the document is, the more piecemeal amendments there are," she said.

When an agency "adds an entire part or amends sections, it’s a little easier for us to fold in."

Back and forth

But with piecemeal amendments — when a word or phrase is changed in a chapter — the review process takes longer to get to final publication, Bunk said.

"So the more amendatory instructions they have, we check each and every one of those little changes," she said.

"Our entire staff is less than 60 people. I think people are surprised" when they learn that, she said.

"We go back and forth with the agency," asking, "is this really what you mean to say?"

That process is repeated "until ourselves and the agency agree that the document is good to be published, and then we file it for public inspection," Bunk said.

Under the Federal Register Act, the document has to go on public inspection at least the day before it publishes in the Federal Register.

Journalists, paralegals and others have made checking that "public inspection" tab on the Federal Register website a daily routine, trying to be one step ahead of government actions.

It’s so much easier now to do so. "Public inspection used to mean it was on a table in the front of our office," Bunk said.