Preliminary Injunctive Regulation

55 Pages Posted: 15 Jun 2016

See all articles by Albert Lin

Albert Lin

University of California, Davis - School of Law

Date Written: June 13, 2016

Abstract

Rapid technological changes pose serious challenges for the Environmental Protection Agency (EPA) and other regulators charged with protecting human health and the environment. These changes can result not only in significant harms, but also in the entrenchment of new technologies that can be difficult to undo should the need arise. In urgent circumstances, agencies often must act quickly, but they face an increasingly ossified rulemaking process. The Administrative Procedure Act’s good cause exception to notice and comment rulemaking offers the most promising option for a swift and effective response. Empirical analysis of EPA’s use of that exception demonstrates that, contrary to concerns regarding potential agency abuse, EPA has exercised restraint in invoking the exception. Going forward, EPA should consider more aggressive use of the exception to respond to urgencies resulting from rapid technological developments and environmental changes. In justifying an expedited approach, EPA can make explicit reference to congressional inaction on an issue, the generally protracted nature of contemporary rulemaking, and the particular delays that the agency has encountered in ordinary rulemaking.

Keywords: administrative law; good cause exception; notice and comment rulemaking; environmental law

Suggested Citation

Lin, Albert, Preliminary Injunctive Regulation (June 13, 2016). Arizona Law Review, Vol. 58 (Forthcoming), UC Davis Legal Studies Research Paper No. 497, Available at SSRN: https://ssrn.com/abstract=2795202

Albert Lin (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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