Partner Dale Mullen participated in the Panel "Who Decides?" as part of the Environment & Agriculture;
Energy, Clean Air & Natural Resources;
Government Operations, Oversight & Consumer Affairs; and
Telecommunications & E-Commerce
Joint Fall Committee Meeting.
“Who Decides” important regulatory and economic issues is far different today than what Congress envisioned when it enacted the APA. The APA was intended to require regulations be necessary and based on sound science; a significant public input process; a system with checks and balances; and a process that reflects the will of Congress.
Today’s system is almost unrecognizable, as special interest groups use lawsuits to short-circuit the public process required by the APA. Skirting public input and scrutiny, these groups use litigation with sympathetic agencies to secure settlements and court-ordered outcomes favorable to activists and the agencies. The intent of Congress is often completely ignored. And because courts typically defer to the agencies’ expertise in the rulemaking process, it’s difficult for impacted parties to stop bad rules from becoming effective.