Whether you’re manufacturing widgets or rubber bands, paper products or cheese, one thing most manufacturers have in common is being subject to various regulations by the Environmental Protection Agency (EPA). Manufacturers often experience regulation as an imposition of new, stringent requirements that drive up operational costs. However, there are opportunities to engage in the regulatory process that allow manufacturers to participate in the development of the rules they must follow. In his book, “Effective EPA Advocacy,” Richard Stoll, elected this year as a Fellow in the American College of Environmental Lawyers, breaks down the processes by which EPA develops its rules and policies. He also outlines how companies can become involved in shaping the regulations and policies that affect their operations and their bottom lines.
Manufacturers can be impacted by rules and policy that are developed in several ways, and Stoll specifically addresses several of these, including “informal” rulemaking and “sub-regulatory” decisions.
Informal Rulemaking
Most manufacturers are familiar with the informal rulemaking process – it is the traditional method by which EPA publishes a draft rule for notice and comment and then incorporates and/or responds to those comments in crafting the final rule. Stoll notes that if a company wants to influence the development of rules through this process, then early and frequent advocacy is key. Working with the agency in the planning phases of a new rule provides manufacturers with a chance to influence a rule that is still being drafted. On the flip side, Stoll also outlines the power of the judicial review process, which allows parties to seek review of final agency decisions.
Sub-Regulatory Decisions
Manufacturers are usually less familiar with the use of sub-regulatory decisions, which is the process by which EPA interprets or clarifies its regulations. Sub-regulatory decisions serve an important role for the regulated community, allowing EPA to provide clarity without utilizing the resources to go through the informal rulemaking process.
Sub-regulatory decisions can be in the form of an interpretive memo intended to be responsive to a specific question or a more conventional guidance document developed in conjunction with a rule to guide implementation and compliance. In the end, Stoll notes that the sub-regulatory decision making process is even more informal than informal rulemaking. Also, although EPA relies heavily on this type of guidance and courts will look to it as informative, Stoll points out that it does not have the force of law like regulations. Its development cannot be challenged in court either. But even though sub-regulatory decisions aren’t enforceable per se, to the extent the EPA relies on them in its decision making process, there is value in working with the agency to help establish reasonable guidance.
The Cost/Benefit Analysis
Ultimately, Stoll acknowledges that whether manufacturers engage in EPA advocacy comes down to weighing the cost of compliance against the cost of engaging in the regulatory process. As manufacturers strive to strike this balance, Stoll identifies a number of practices and factors that should be considered, including the following:
- Informal rulemaking really is informal – any party can request a meeting with EPA on any issue at any time.
- Start early, and if possible, even before EPA issues a draft rule – EPA is often considering ranges of options. By the time a draft is issued, EPA has already reduced the options under consideration.
- Find out what rules EPA is developing – review the regulatory agenda; sign up for email alerts from EPA, industry groups, or both; and review trade press.
- Coordinate your efforts – pooling resources can be cost effective and smart in the right situation, and there can be strength in numbers.
- Go beyond EPA if necessary – enlisting the assistance of Members of Congress and making your case to the media can be both cost efficient and effective.
Participating in EPA advocacy may seem daunting, but participation can add real value to a manufacturer’s bottom line.