Fiftieth Anniversary of the Administrative Procedure Act || PETITIONS AND PRIORITIES

PETITIONS AND PRIORITIESAuthor(s): Linda FisherSource: Administrative Law Review, Vol. 48, No. 3, Fiftieth Anniversary of theAdministrative Procedure Act (SUMMER 1996), pp. 380-383Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/40709829 .

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380

PETITIONS AND PRIORITIES Linda Fisher*

the debate over regulatory reform, I find at times that I am truly conflicted. I find myself very defensive about EPA in a way, perhaps not unlike a

mother when her child is being criticized. I become very defensive and publicly try to deny that there are any faults, but privately I know that in fact some of the criticisms are legitimate and real. At other times in this debate, I am reminded of how frustrated I often was at EPA with the prescriptiveness of the statutes, the inflexibility and the rampant distrust of anything the agency did.

Now that I am in the private sector, I am changing my perspective. I am gaining an appreciation for how frustrating it can be for someone outside of EPA to try to get information, to try to figure out why EPA is doing what it is doing, to try to get better data before the agency so it can make better decisions, but frustrated with the fact that you can't see any relation between the data you sent in and the decision that comes out.

Clearly, the whole debate over the regulatory reform legislation is aimed to address many different frustrations with the agency. My experience is that many of the statutes that are administered by the regulatory agencies such as EPA, FDA, and OSHA were drafted with very laudable goals in mind. But most were drafted with little or absolutely no faith in the agency's ability to carry them out. Therefore most of the regulatory statutes and particularly the environmental ones were drafted with as little discretion delegated to the agencies as possible.

Congress left little to chance. A patchwork quilt of environmental regulations has evolved that, based on my experience, precludes the use of common sense and the use of good science in decisionmaking. At the time many of these bills passed, the Congress feared that EPA would not be protective enough. It was feared that EPA would yield too much to economic considerations and not do enough in the protection of human health and the environment.

Another factor was competition within Congress. In an era of increasing demands on a public agency and the inability of funding for those agencies to keep up, each different authorizing committee wanted to have preference given to their statute, so prescriptive deadlines were written into statutes in the hope that their issue would be addressed first. Within the congressional authorizing committees, there was a clear recognition that they had given regulatory agencies

* Director, Monsanto Corporation, Washington, D.C.



SUMMER 1996 APA Anniversary: Petitions and Priorities 381

too much to do and too little money with which to do the tasks. To cure the problem, Congress made the statutes more prescriptive, and more directive, with deadlines and citizen suits.

Many feared the exercise of judgment by the agencies would lead to too much leniency, not getting enough done and not moving fast enough. Over the past 15 years EPA was criticized far more for not being

" green enough" than for

being too accommodating about costs of the regulations. Today, the politics of the environment have changed. EPA is criticized, in this different era, for the same flaws: using bad science, using bad judgment and not using common sense. But this time, the "no trust" factor is still in play, yet it is coming from the opposite side of the debate. Just as the criticisms are the same, so are the solutions. People on the right side of the political spectrum want to use the same tools to make the agency mend its ways. These tools include lawsuits, the petition process, deadlines, and the same legal tools to force EPA to do its job their way, or stop EPA action.

Today, as I look at legislation from the industry side, I have the same concerns as I had while at EPA: are the "cures" better than the "disease"? What will be gained or lost by another prescriptive statute placed upon EPA, with deadlines and citizen suits? You cannot legislate common sense and good judgment. There are always going to be some people in the agency who make wrong or bad decisions. I am convinced today as I was before, and I used to tell congressional staff, you cannot legislate common sense, you cannot legislate good judgment. Resources will make a difference. Regardless of how many deadlines and citizen suits are imposed, the agency can only do a certain number of things at once.

Now let's focus on the petitioning process. Petitions for the review of rules have been discussed but I also will address petitions for alternative compliance, because it is very important and does not receive enough attention.

The goal of the review process is laudable, just as goals of the legislation passed in the 1970s and 1980s was laudable. Agencies that pump out pages of regulations should go back every now and then to look at whether rules that made sense in the past still make sense today, or whether there are better, cheaper, and more effective ways to do business. The agencies will never get around to doing the reviews unless Congress tells the agency to do them, instead of Congress telling the agencies several other things to do. Redoing old work is not as exciting as blazing new trails and doing new work. The concept of Congress asking EPA to review current rules is a wise one.

But the question is whether, in fact, this way of setting up the petition and review process will be effective in getting things done.

The petition process was established because people were afraid that the agencies would avoid reviewing certain rules. And again, in a sense, here comes the trust factor. On the plus side, it has been amended with the various iterations that I followed through Congress, to add some requirements on the petitioner that I think will keep it from being used too frivolously, or from clogging up the agency. However, as it is currently written, it allows rules that are placed on the docket through the petition process to take precedence for review over



382 48 ADMINISTRATIVE LAW REVIEW 380

the ones that are nominated by the agency. So, in other words, as the agency does its own review and structures its schedule, those rules must be reviewed by the agency in a ten-year time frame. If you petition to get a rule added to that schedule, the agency has to look at those rules in three years.

I think this approach has two flaws. First of all, it discourages the regulated community from working cooperatively with EPA to identify those rules most in need and most appropriate for review. Secondly, and instead, it encourages everyone to use the petition process in order to get to the front of the queue. In other words, there is no payoff for people to work cooperatively with the agency. There is only a payoff to take advantage of the petition process. In a sense, I think this puts the incentives in the wrong direction. From my perspective, people should be working to get an agenda that is broad and fair, and the petition process should be used minimally and should not be given precedence necessarily over the others. It also allows the petition process, not merit, to set the order of the agency's review. And given the limited resources that EPA has or the other regulatory agencies have, my perspective is that some discretion should be shown to the agencies to establish the order for review.

Perhaps Congress should give some guidelines for how rules should be taken in order, but merit, I think, should be the driving factor in terms of which rules the agency reviews first, and it should not be left up just to the petition process. From my own experience, somebody has to be in charge of running EPA. My vote first of all goes to the Administrator, secondly maybe to Congress, but third (and way back), to the courts. Overall, will the review and petition process lead to improvements? From my perspective, it's a little bit hard to

say right now. I think the challenges to the agency will be twofold. The first

challenge is going to be to balance the demands of the process of the review

against all the other important demands on the agency's resources. It is im-

portant to a company like Monsanto that all the regulatory agencies, but especially EPA and FDA, be both strong and credible in the eyes of the public, both here and abroad. We believe that they must have the resources to do their

jobs well and fairly and in a balanced way. The resource demands of the new law must not come solely at the sacrifice of some very important ongoing programs, especially product reviews and approvals.

The second challenge I think we all face in making the petition and review

process valuable is one of timing. The process for reviewing regulations and

repealing or amending them is going to be, by its very nature, very time consum-

ing. Cost savings may be very real, but they could be very far off in the future. That said, there is no question that with changing technologies, new ways of manufacturing and processing, many of the command and control regulations on the books are in need of change. In the product approval programs, there are new ways of testing products that are going to be cheaper and faster and much more reliable, and these new methods need to be made part of the regulatory review process, or the regulatory process as soon as possible. In my perspective, it's going to be how the final review process and the petition process are drafted that are going to determine ultimately how beneficial they will be to industry.



SUMMER 1996 APA Anniversary: Petitions and Priorities 383

The second petition process that I want to talk about for a moment is one that I am truly genuinely enthused about, and that is the one that allows a facility or a company to petition an agency like EPA for an alternative method of compliance with its regulation. It has occurred to many people that facilities need to be regulated on a facility- wide basis, and not on an individual media basis. This thinking is reflected in a number of ways. There is a growing debate about whether there should be one integrated environmental statute rather than 13 media specific statutes. The Amoco project that EPA conducted jointly with Amoco at a facility indicated that there could be huge costs and environmental gains made by regulating a facility as a unit and allowing trade-offs among the different sources of pollution. EPA under both Bill Re illy and Carol Browner have started many cross media programs including their XL program, all de- signed to get away from the very stringent series of permits and media specific regulations that companies face at different facilities. Giving more flexibility to meet current standards and to be able to tradeoff emissions from one source to another can result in a more cost-effective and environmental approach to facility management.

At least from our perspective, the alternative compliance provisions provide the opportunity for real cost savings in the more immediate future, with few if any adverse effects for the environment, than perhaps the regulatory review process. In contrast to the review and the petition process, which in many ways is a fight about the cost of doing business, the alternative compliance petition clearly paves the way for a new way of doing business between the regulated community and EPA, and really, the public. It is premised on the notion that there may be newer ways of addressing problems that were not thought of at the time the regulations or statutes were drafted or the permits were written. It places the burden where it should be: on regulated parties to come forward with innovative but protective solutions. These are the things that industry has trumpeted that it could do if given the chance. And this provision gives industry that chance. Again, the details, as with the petition and review process, are going to matter. But hopefully both through the statutory drafting that takes place over the next few months and through the implementation at the agencies, it will not become overly prescriptive and take forever to implement and instead it will allow experience to evolve and put in place a program that will allow industry to come forward and do the right thing.



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