Vol. 4 No. 8 (August, 1994) pp. 102-105

RULEMAKING: HOW GOVERNMENT AGENCIES WRITE LAW AND MAKE POLICY by Cornelius Kerwin. Washington, D.C.: Congressional Quarterly Press 1994. 321 pp. $32.95 (hardbound); $21.95 paperbound.

Reviewed by Lettie M. Wenner, Northern Illinois University

This book tackles some very important issues in administrative law that have not received sufficient attention, including how agencies go about formulating regulations and rules and how the other branches of government and the public participate in and partially control this process. Professor Kerwin has explored the unavoidable conflict within agencies between technical experts, such as engineers and chemists in EPA, with policy analysts, economists, and lawyers. Like C.P. Snow's natural scientists, technicians "know" what the answer to most technical issues are and cannot understand social science concerns with the process of achieving those ends. Professor Kerwin discusses other conflicts such as that between field representatives, whose responsibility it will be to tailor implementation of the rules to their local circumstances and headquarters whose drive is toward uniformity at all costs.

The author's methodology is the time-honored technique of interviewing key players, which he did in 35 federal agencies from the Agricultural Marketing Service in USDA to the Environmental Protection Agency. He is especially insightful in describing the strategy that many agencies have developed to create work groups to draft regulations consisting of representatives from the Office of General Counsel, program office, policy analysts, field representatives, and enforcement. Clearly the key to success is a leader who can select enough players with a stake in the rules, but not too many to make the group cumber- some. S/he needs to be sensitive to the fact that members of the work group may not be rewarded by their own office and will have to take time from other tasks to assist in drafting regulations. Constant changes in personnel also means a steep learning curve for many. The need to reach consensus is often preempted by deadlines, and a leader will need all the diplomatic ability s/he can muster in getting consensus. Another key to success is to get early input by senior officials, especially political appointees in order to prevent "late hits."

The author also discusses various strategies adopted by Presidents and Congressional representatives to control the deci- sions of rule makers in the agencies. These include everything from writing laws so specifically that there is no discretion left for agencies to exercise to strategically reducing agencies' budgets and scheduling oversight hearings. The legislative veto is discussed, but after stating that it was declared unconsti- tutional, the author is oddly silent about Congressional insistence on its prerogatives since the CHADHA decision such as that depicted in the work of Louis Fisher and Barbara Craig.

Professor Kerwin analyzes the President's use of the Office of Management and Budget to impose his policy preferences on agencies over the past decade. He discusses the role of the Regulatory Analy-

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sis Review Group and the Council on Competitiveness and the convoluted politics of the Reagan and Bush Administrations in attempting to water down or eliminate social welfare rules. Reagan began this trend when he made OMB overseer of all regula- tions, enabling business leaders to go around agency decisions to influence OMB or the White House directly. The Council on Compet- itiveness added to this by operating without procedural restric- tions. One egregious example of reducing the impact of social regulations on industry was OMB's insistence that EPA withdraw a rule that would have forced firms to notify the public when they exceeded air pollution emission standards.

Professor Kerwin's data show that there was great disparity in OMB's treatment of agencies in the 1980s. It imposed its use of cost/benefit analysis hardest against the Departments of Labor, Health and Human Services, EPA, and other agencies whose missions Republican politicians find most offensive. The Council on Competitiveness, which Clinton abolished on his inauguration, is revealed as a mechanism to accommodate industry demands. Nevertheless President Clinton has continued to use OMB as a mechanism to impose his own preferences on the bureaucracy, and it seems unlikely this useful tool will be relinquished regardless of the ideology of future administrations.

Chapter 5 discusses the role of public participation in rule making. In the early part of the 20th century most public participants were regulated parties. Industry gave advice infor- mally at first to USDA, FCC, ICC, and in fact these agencies were largely dependent on their clientele for their technical informa- tion base. Later, however, the Department of Labor included both employers, employees, and the public in hearings on minimum wages. The 1946 Administrative Procedures Act provided for notice and comment, but this opened door only to industry. In the 1960s and 70s non-industry groups, driven by a lack of faith in government and fear of its capture by industry, organized and insisted on being included. Congress institutionalized this change through the National Environment Policy Act and the Reduction in Paperwork Law. Jimmy Carter's Executive Order 12044 called on agencies to get the public involved, to use plain English, and to review the effects of their programs.

Regulatory negotiation (reg neg) among all stakeholders in the process was started in the 1980s through the auspices of law professors who believed this would increase participation in rule making. The Negotiated Rulemaking Act passed in 1990 formalized this method of establishing regulations. If reg neg is to succeed, the process needs a skilled convener who can move people from their polarized first positions. Setting rules through negotiation takes longer, but it may reduce later litigation.

The author surveyed the Federal Register to see how many rules attracted public comments from 1990-91 and found that interest is not universal, as many new rules are trivial or routine and create no controversy. He surveyed 180 groups and found that 80% participate in rule making.

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Like other students of interest groups, he found that trade associations and business groups are more influential than consumer groups. For example, USDA's marketing order program is dominated by producers and handlers. Despite the economic bias to the system, business interests do not always win, as in the cigarette labelling controversy. Rule makers think groups have less influence than groups think they have. In terms of strategies, organizations prefer to form coalitions and contact agencies informally before rule making. Filing petitions, and public hearings are considered less important.

The federal courts too have a long history of overseeing regulatory rule making, which has been better covered by administrative law texts. Professor Kerwin takes us through the major landmark decisions, explaining how the concept of standing originally was used to prevent many organizations from complaining about administrative discretion. The story of the attempt of the Supreme Court to nullify the New Deal by declaring laws too vague and administrative discretion overused is retold. The opening of standing to sue is described up to the high water mark of the SCRAP case. He discusses how the hard look was established by the DC circuit in OVERTON and how the Supreme Court came to rein in the lower courts as in VERMONT YANKEE. Professor Kerwin points up the high court's inconsistency among cases such as STATE FARM which gave lower courts considerable latitude to review agencies, and CHEVRON where deference to agencies was again emphasized.

Some agencies are rarely sued, for example the Agricultural Marketing Service, which evidently is doing things much to the satisfaction of the constituency it serves, namely food produc- ers. Others, such as EPA, are rarely allowed to act without both constituency and clientele challenging it. Rosemary O'Leary (ENVIRONMENTAL CHANGE: FEDERAL COURTS AND EPA, 1993) has found that EPA is not only often overturned but sometimes intimidated into changing its regulations simply by the filing of a suit. Sometimes courts give EPA more authority to regulate and force it to act, as in the injection of waste into underground wells. At other times courts give interest groups authority to oversee how EPA does its job, as in regulating pesticides.

The worst defect of this book is its organization. The first three chapters add little to what one may get from a good administrative law text, and they are marred by many references to issues that will be taken up in subsequent chapters. These chapters needed the attention of an editor who could have forced the author to complete each subject's discussion in one place and reduce repetitions and overlaps. Foreshadowing of things to come is more appropriate to Gothic novels than to academic discus- sions. REFERENCES: Books: C. P. Snow, THE TWO CULTURES AND THE SCIENTIFIC REVOLUTION, New York: Cambridge University Press, 1959.

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Louis Fisher, CONSTITUTIONAL CONFLICTS BETWEEN CONGRESS AND THE PRESIDENT, 3rd ed. Kansas University Press, 1991

Barbara Hinkson Craig, THE LEGISLATIVE VETO: CONGRESSIONAL CONTROL OF REGULATION, Boulder, CO: Westview Press, 1983.

Rosemary O'Leary, ENVIRONMENTAL CHANGE, Philadelphia: Temple University Press, 1993.

Cases: CITIZENS TO PRESERVE OVERTON PARK v. VOLPE, 401 U.S. 402 (1971)

IMMIGRATION AND NATURALIZATION SERVICE v. CHADHA, 462 U.S. 919 (1983)

U.S. v. SCRAP, 412 U.S. 669 (1973)

VERMONT YANKEE NUCLEAR POWER CORP. v. NATURAL RESOURCE DEFENSE COUNCIL, 435 U.S. 519 (1978)

MOTOR VEHICLE MANUFACTUERERS ASSOCIATION V. STATE FARM, 463 U.S. 29 (1983).