Response of the Environmental Protection Agency to Public Submissions: Notice and Comment Process in Methane Emission Deregulation

Abstract

The federal Administrative Procedure Act mandates published notice of proposed rulemaking, along with the provision that stakeholders and the public at large be given the opportunity to comment on significant proposed rules. In theory, federal rulemaking is improved by the solicitation and consideration of these comments. The airing of diverse opinions may be expected to promote healthy debate within the agency and between the agency and affected stakeholders, ranging from concerned citizens to multinational corporations. But how effective is the notice-and-comment process? This work seeks to answer that question qualitatively but systematically, by examining significant comments received by the Environmental Protection Agency in connection with the 2020 Policy Amendments to the New Source Performance Standards for the oil and natural gas sector. There is no doubt EPA invests substantial effort in responding to significant comments. Moreover, many of EPA’s judgments and decisions appear to have plausible legal foundations. However, for the issues we have investigated, arising in 2019-2020, the EPA generally seems unpersuaded by reasonable arguments and resistant to reasonable suggestions, even when these are advanced by diverse commenters. Sometimes, instead of dealing with these issues forthrightly, EPA ignores or evades them. A response that appears too often is that the issues can be taken up at an unspecified time in the future. Among other concerns, these observations raise the question of whether producing the 638-page Response to Public Comments constituted the best use of limited agency resources.