Editor’s note: Open Market is publishing a new blog series this week on pressing issues in administrative law and regulatory policy, which we’ve titled “Worst Procedural Abuses of the Obama Era.” It will also include contributions by Marc Scribner, Trey Kovacs, and Ryan Radia.
Since Obama took office, the Environment Protection Agency’s grossest procedural violation was so outrageous that the agency voluntarily reversed course after it came to light. In the summer of 2015, the agency tried and failed to get away with a secret rulemaking.
On July 23, 2015, the EPA published proposed greenhouse gas regulations for medium and heavy-duty vehicles. Buried deep within this 627 page proposed rule was an amendment to regulations applicable to light-duty vehicles:
Certified motor vehicles and motor vehicle engines and their emission control devices must remain in their certified configuration even if they are used solely for competition or if they become nonroad vehicles or engines. 80 Fed. Reg. 40138, 40565.
The proposed amendment would have effectuated a significant policy shift. Since the enactment of the Clean Air Act, millions of certified vehicles have been modified to become vehicles used solely for competition. An entire $36 billion industry evolved around this practice. The amended language excerpted above would have made it illegal for certified vehicles to become competition-use only vehicles.
Despite the major implications of the proposed amendment, no one knew it existed—and with good reason. Modified cars are classified as “light-duty vehicles” but the rulemaking pertained to “medium- and heavy-duty vehicles.” Of course, there is no reason to suspect that the EPA would try to impose a major shift in policy for one category of automobile into a regulation dealing with an entirely different category of car. This would be like regulating apples in a rulemaking for oranges.
Moreover, the EPA did not make mention of the amended language in the table of contents of the rule. Nor did the agency reach out to the car modification industry. So the two-month window for public comments on the proposed rule came and went, and the agency did not hear any opposition.
It’s difficult to overstate the wrongness of the EPA’s actions. It’s the only instance I’ve ever encountered—by any agency—of an attempted secret rulemaking. Obviously, trying to sneak through a rule change without anyone noticing makes a mockery of the Administrative Procedure Act’s requirement for inclusive rulemakings.
Happily, this story has a hopeful ending that demonstrates there are still limits to executive policymaking. Before the agency issued a final rule, the Specialty Equipment Manufacturer's Association (SEMA) learned of amended language and proceeded to cry foul. Members of Congress objected. So did eight attorneys general. In the face of withering and justified criticism, the agency shelved its secret rule change.