Taking Public Access to the Law Seriously: The Problem of Private Control Over the Availability of Federal Standards

In the 1930s, Harvard professor Erwin Griswold famously complained about the enormous numbers of New Deal regulations that were obscurely published on individual sheets or in “separate paper pamphlets.” Finding these binding federal rules was difficult, leading to “chaos” and an “intolerable” situation. Congress responded, requiring that agencies publish all rules in the Federal Register and in the Code of Federal Regulations (CFR). Currently, recent federal public laws, the entire U.S. Code, the Federal Register, and the CFR are all freely available online as well as in governmental depository libraries. But with respect to thousands of federal regulations, the clock has been turned back—and worse. To save resources and build on private expertise, federal agencies have incorporated privately drafted standards into numerous federal regulations, but only by “reference.” These standards range widely. The CFR presently contains nearly 9,500 “incorporations by reference” of standards, often referred to as “IBR” rules. Many IBR rules incorporate privately drafted standards from so-called “standards development organizations” or “SDOs.” Agency use of IBR rules is likely to grow. Since the 1990s, both executive branch and congressional policies have officially encouraged agency use of privately drafted standards

Joseph L. Sax: The Realm of the Legal Scholar

It is one of my great regrets that I never really got to know Professor Joseph Sax personally. I joined the faculty at the University of Michigan Law School well over a decade after Sax departed our halls for the University of California at Berkeley’s Boalt Hall School of Law. I met him on one occasion several years ago, when he gave an engaging workshop at Michigan on governance issues around Colorado River water allocation, complete with a detailed map of the watershed. I am exceptionally fortunate, however, to occupy a chair named for him. This is not only because of his major contributions to the creation of environmental law, but because—even viewed at a distance—his career, accomplishments, and legacy are a model of what it can mean to realize one’s potential as a legal scholar. The numerous achievements in environmental law that made Sax a giant in his field have been widely recited elsewhere: his scholarship on the public trust doctrine and on citizen suits was path-breaking, and his scholarship on takings law was frequently cited in the Supreme Court. He was awarded the Blue Planet Prize, sometimes called the Nobel Prize for the environmental sciences, was named a Distinguished University Professor here at Michigan, and wrote an influential environmental protection statute for the State of Michigan. His contributions to law and the environment are legion; later in life he expanded his focus to cultural treasures as well as environmental ones

Memorandum on Reopening the Dodd-Frank Act Section 956 Incentive Compensation Rule

Professor Michael Herz, along with four other administrative law professors, sent a letter to six agencies about legal options regarding a long-delayed rule aimed at executive compensation

The California Greenhouse Gas Waiver Decision and Agency Interpretation: A Response to Galle and Seidenfeld

Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules be read broadly to include the authority to declare state law preempted if the agency views that as an appropriate way to implement the program? (I have previously argued for both limited deference and a presumption against agency preemption.) Galle and Seidenfeld argue for the superiority of agency decisionmaking because, as a formal matter, it may be comparatively transparent and accountable. An agency, unlike Congress, must comply with notice and comment requirements, at least for rulemaking, and must explain its reasons for taking an action on judicial review. Galle and Seidenfeld suggest that agency preemption decisions might be even better reasoned if the judiciary engaged in a harder “hard look” on judicial review. As a preliminary matter, I want to point out that the level of agreement among commentators writing in this area is striking. Professors Galle, Seidenfeld, Catherine Sharkey, Thomas Merrill, and I all agree that agencies should not be categorically prohibited from preempting state law. We agree further that agencies have valuable information to offer about how a particular federal program functions, the issues it is designed to address, and how regulated entities may fare if faced with multiple standards. Finally, however—and despite Galle and Seidenfeld’s claims on behalf of agency decisionmaking—we apparently also agree that more controls are needed on agency interpretations that preempt state law than can be provided by the Chevron doctrine alone. Under that doctrine, courts uphold a “reasonable” agency interpretation of ambiguous statutory language. No one wants to give away the store here

Joseph L. Sax: The Realm of the Legal Scholar

It is one of my great regrets that I never really got to know Professor Joseph Sax personally. I joined the faculty at the University of Michigan Law School well over a decade after Sax departed our halls for the University of California at Berkeley’s Boalt Hall School of Law. I met him on one occasion several years ago, when he gave an engaging workshop at Michigan on governance issues around Colorado River water allocation, complete with a detailed map of the watershed. I am exceptionally fortunate, however, to occupy a chair named for him. This is not only because of his major contributions to the creation of environmental law, but because—even viewed at a distance—his career, accomplishments, and legacy are a model of what it can mean to realize one’s potential as a legal scholar. The numerous achievements in environmental law that made Sax a giant in his field have been widely recited elsewhere: his scholarship on the public trust doctrine and on citizen suits was path-breaking, and his scholarship on takings law was frequently cited in the Supreme Court. He was awarded the Blue Planet Prize, sometimes called the Nobel Prize for the environmental sciences, was named a Distinguished University Professor here at Michigan, and wrote an influential environmental protection statute for the State of Michigan. His contributions to law and the environment are legion; later in life he expanded his focus to cultural treasures as well as environmental ones

The California Greenhouse Gas Waiver Decision and Agency Interpretation: A Response to Galle and Seidenfeld

Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules be read broadly to include the authority to declare state law preempted if the agency views that as an appropriate way to implement the program? (I have previously argued for both limited deference and a presumption against agency preemption.) Galle and Seidenfeld argue for the superiority of agency decisionmaking because, as a formal matter, it may be comparatively transparent and accountable. An agency, unlike Congress, must comply with notice and comment requirements, at least for rulemaking, and must explain its reasons for taking an action on judicial review. Galle and Seidenfeld suggest that agency preemption decisions might be even better reasoned if the judiciary engaged in a harder “hard look” on judicial review. As a preliminary matter, I want to point out that the level of agreement among commentators writing in this area is striking. Professors Galle, Seidenfeld, Catherine Sharkey, Thomas Merrill, and I all agree that agencies should not be categorically prohibited from preempting state law. We agree further that agencies have valuable information to offer about how a particular federal program functions, the issues it is designed to address, and how regulated entities may fare if faced with multiple standards. Finally, however—and despite Galle and Seidenfeld’s claims on behalf of agency decisionmaking—we apparently also agree that more controls are needed on agency interpretations that preempt state law than can be provided by the Chevron doctrine alone. Under that doctrine, courts uphold a “reasonable” agency interpretation of ambiguous statutory language. No one wants to give away the store here

American Bar Association Resolution 112: Championing Public Access to the Law.

In August 2016, the American Bar Association House of Delegates reaffirmed the fundamental democratic principle of public access to the law. ABA Resolution 112 calls on Congress to enact legislation ensuring a basic level of public access, without charge, to all regulatory law. Such legislation would address serious current obstacles to the public’s ability to see the law