Email #212: “Most troublesome of all”?

Just as there is a process for creating laws, there is a process for creating the rules and regulations that enforce those laws. This week a court struck down the EPA’s two-year stay on enforcing a methane regulation, deciding that it is “an order delaying the rule’s effective date, and this court has held that such orders are tantamount to amending or revoking a rule.”

As you know, the EPA must first write a Notice of Proposed Rulemaking and list it in the Federal Register for others to comment on. Only after considering those comments can the EPA issue a final rule, list it on the Federal Register, and codify it by adding it to the Code of Federal Regulations. The EPA ignored that process by effectively revoking a current rule created to enforce the Clean Air Act.

In the past you have argued that the process for developing regulations is essential and that rules that did not follow it were illegitimate. You said in March that you opposed the Stream Protection Rule because the Office of Surface Mining Reclamation and Enforcement (OSM) did not follow the process:

“Most troublesome of all, OSM did not comply with the requirement to engage in meaningful consultation with the impacted state governments during the yearlong development of this rule. In fact, several states dropped out of the rule development process altogether due to frustration with OSM.”

Why then are you not objecting to the EPA’s actions now? They too are not complying with the requirement to engage in meaningful consultation. Worse, they have eliminated the rule development process altogether.

Do you not care about the process and were only using it as an excuse to oppose the Stream Protection Rule? Is this yet another example of your evoking a principle in one situation and then ignoring that same principle in a different situation? Do you have any guiding principle other than political convenience?

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Author: Chris Gavaler

Chris Gavaler is an assistant professor of English at Washington and Lee University where he teaches creative writing, contemporary fiction, and comics. He has published two novels, Pretend I'm Not Here (HarperCollins 2002) and School For Tricksters (Southern Methodist University 2011), and two nonfictions, On the Origin of Superheroes (Iowa University 2015) and Superhero Comics (Bloomsbury forthcoming 2017).

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