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E&C Democratic Leaders: Trump Administration Violating Rulemaking Process

Mar 20, 2017
Press Release
“These ‘final rules’ are not valid and stand to create dangerous confusion”

Energy and Commerce Committee Ranking Member Frank Pallone, Jr. (D-NJ), Energy Subcommittee Ranking Member Bobby Rush (D-IL), Environment Subcommittee Ranking Member Paul Tonko (D-NY), and Congresswoman Doris Matsui (D-CA) sent a letter to Office of Management and Budget (OMB) Director John Michael Mulvaney today expressing grave concern over the Trump Administration’s pattern of disregard for the legal requirements of the Administrative Procedure Act (APA), which outlines the federal rulemaking process.  The members requested immediate withdrawal of two recent Environmental Protection Agency (EPA) actions and one pending Department of Energy (DOE) action that violate the APA. 

The APA outlines the federal rulemaking process, including proper notice, comment periods, and publication prior to implementation.  It is designed to provide guarantees of due process, and was called by its author, the late Senator Pat McCarran (D-NV) in 1946, “a bill of rights” for the Americans whose affairs are “regulated in one way or another by agencies of the Federal Government.”  In the last week, EPA Administrator Scott Pruitt has issued two final rules without proper notice, the required comment period, and without the required 30 days between publication and implementation. 

“We request that you withdraw these regulations immediately,” Pallone, Rush, Tonko and Matsui wrote.  “These ‘final rules’ are not valid and stand to create dangerous confusion among regulated entities if they are not withdrawn.  Even more importantly, failure to withdraw these new ‘final rules’ will put workers and communities nationwide in danger by delaying needed safeguards.” 

The two rules finalized by Administrator Pruitt are intended to prevent a number of federal safety regulations from going into effect by suspending their implementation date.  The pending rule expected to be published by the Department of Energy tomorrow would similarly delay five energy conservation rules finalized in December and January.  Under the law, changing the effective date of a regulation qualifies as a substantive amendment that must follow the rulemaking process established by APA.     

The federal regulations in question are largely intended to improve public health and safety standards.  One of the regulations provides a safety standard designed in response to the West Fertilizer explosion that claimed the lives of fifteen people, another implements a public health standard to prevent exposure to the toxic carcinogen formaldehyde, and another strengthens protections for Superfund sites contaminated by hazardous pollutants. 

In addition to the immediate withdrawal of the rules, the four Committee leaders are requesting additional information pertaining to how these rules were finalized, including:

  • Copies of all records relating to the Action Development Process for this rulemaking including records of any agency work groups (including names of employees and offices represented in the work group), work group meeting dates (including teleconferences), as well as all emails and materials detailing the internal agency process used to draft this rulemaking. 
  • Copies of all emails and other communications between Mr. Pruitt and all other current EPA political appointees with representatives and employees of the American Chemistry Council, the American Forest & Paper Association, the American Fuel & Petrochemical Manufacturers, the American Petroleum Institute, the Chamber of Commerce of the United States of America, the National Association of Manufacturers, and the Utility Air Regulatory Group. 

A copy of the letter is available here.