The Regulatory Overreach is in High Gear

by Kathleen Sgamma, Vice President of Government and Public Affairs on November 30, 2015 - 8:10am

Recently, the Bureau of Land Management (BLM) granted an extension of the comment period for onshore order 4 and reopened onshore order number 3. EPA likewise announced an extension for four rules. While many trades and others had requested extensions to the comment periods, Western Energy Alliance was the only organization that asked for a comprehensive comment period for all these rules to overlap with another related forthcoming rule as well as a reopening of the comment period for onshore order number 3. 

That sounds great.  We got what we wanted, right? Not unless you believe a 14 day extension to one BLM rule, including the Thanksgiving holiday, is adequate to address highly complex rules. On the EPA side, the four rules were extended a grand total of 17 days. All total, the rules comprise 2,007 pages of dense regulatory language.

Agency rulemaking is supposed to be a deliberative and reasoned process. An agency proposes a rule, takes public comment, carefully weights the substantive comments received from all sides, adjusts the proposed rule accordingly, and then several months (or years) later, publishes a final rule. The process usually takes a few years from formulation to final rule because agencies must weigh scientific, economic, technical, legal and other types of information that they and the regulated community provide.

But what’s going on now is that agencies are trying to finalize regulations to solidify President Obama’s legacy, in particular to show the world that we are “doing something” about climate change. Agencies are not providing adequate time for public input–in normal times 30 to 60 day extensions are granted routinely–because they’re being rushed to get it all done before January 2017. They’re trying to do what normally takes a few years for just one regulation in a little over one year for multiple regulations. As they try to do too much in too short a time, they’re leaving themselves vulnerable to legal challenge and threatening the collapse of that very legacy in court.

This regulatory obsession with the oil and natural gas industry is misguided, as we’re delivering greater climate change benefits than the renewables industry, despite its preferential treatment. The regulatory process is also being used in a punitive manner, and the agencies aren’t really concerned that we have enough time to develop comments. It’s not just the oil and natural gas industry; the Friday before the Thanksgiving holiday week, the Administration quietly released the Unified Agenda, which specifies 2,224 new rules it is implementing nationwide.

But the federal agencies are reaching their limits as well. There’s only so much you can get out of the same group of technical experts within each agency. With their limited budgets and obligations to manage other already-in-place regulations, the bureaucrats are also struggling with the politically imposed workload. Cutting corners is inevitable, which leaves them legally vulnerable.

Our preliminary injunction victory on BLM’s hydraulic fracturing rule is a case in point. BLM spent five years working on the rule and still couldn’t make it stick because BLM cut regulatory corners and failed to compile a complete administrative record. Just imagine the details falling through the cracks now as even more regulations are crammed in. The gears are starting to jam.

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