Peterson to EPA: Stop Doing Your Jobs!

This is House Agriculture Committee Chair Collin Peterson's (MN-07) response to the news that a climate bill may include emissions regulations for biofuels production, particularly corn ethanol. Emphasis mine:

A key House Democrat, the chairman of the House Agriculture Committee, lashed out at the Obama administration today over its biofuels analysis and said he would likely oppose a climate-change bill because of it.

“The only way I would consider any kind of climate-change bill is if it was ironclad that these agencies don’t have authority to do any kind of rulemaking whatsoever,” Rep. Collin Peterson, D-Minn., said at the beginning of a hearing on biofuels policy this morning.

It’s safe to say that’s not going to happen. The climate bill being developed in the House will almost certainly give the administration wide authority to regulate both emissions of greenhouse gases and potential offsets such as reduced crop tillage. ...

Ahem. Dear Rep. Peterson ... after a bill becomes a law, the regulatory agencies have to enforce it. To ensure that they enforce it in a way that can nominally be considered fair and defensible, they have to make rules governing those actions.

Though there's no particular reason to listen to me on this. I defer here to Ernest Gellhorn and Ronald M. Levin, and their comments on the administrative rulemaking process in their well-respected book, Administrative Law and Process: In a Nutshell, Ch. 9, "Rules and Rulemaking". Emphasis mine:

... One of the most important developments in administrative law during the late twentieth century was the agencies' growing reliance on rulemaking as a means of formulating policy. Administrative rulemaking is not a recent invention; the federal executive departments have issued legally binding rules since the beginning of our national government, and the Administrative Procedure Act as originally passed in 1946 had several provisions dealing with rulemaking procedure. In the 1970s and 1980s, however, the number and significance of decisions being made in agency rulemaking proceedings increased dramatically.

Much can be said in favor of this trend. As commentators have argued, the rulemaking process can be more efficient than case-by-case adjudication, because it can resolve a multiplicity of issues in a single proceeding. A clear general rule can produce rapid and uniform compliance among the affected firms or individuals; the scope of an adjudicative precedent may well be harder to define, because its reach will usually depend to some degree on the facts of a particular case. At the same time, rulemaking can provide individuals with important protection.

"When a governmental official is given the power to make discretionary decisions under a broad statutory standard, case-by-case decisionmaking may not be the best way to assure fairness. ... [The use of rulemaking] provides [regulated persons] with more precise notice of what conduct will be sanctioned and promotes equality of treatment among similarly situated [persons]." Dixon v. Love, 431 U.S. 105 (1977). Furthermore, rulemaking proceedings can put all affected parties on notice of impending changes in regulatory policy, and give them an opportunity to be heard before the agency's position has crystallized.

Despite these advantages of rules over individual adjudications, the agencies probably would not have made such a marked shift toward rulemaking without some external pressures. From the agency's perspective, writing a general rule is often more difficult than deciding a particular case, and the likelihood of producing an undesirable or unintended result is correspondingly greater. Moreover, general rules are more likely to inspire concerted opposition from those who will be covered by them. An individual case isolates one respondent, generally selected because of questionable actions, for possible sanction, but a general rule can inspire the whole industry (whose members may or may not have engaged in similar actions) to fight - not only before the agency but in the courts, the Congress, and the media as well. In short, promulgating a rule can be more costly to the agency in time, effort, and good will than deciding a series of cases.

The major impetus for agencies to make greater use of their rulemaking authority came from Congress. Regulatory statutes enacted during the 1970s often contained express grants of relemaking authority, and some of them specifically instructed agencies to proceed by general rule. Moreover, agencies' procedural choices were influenced by the changing nature of the tasks they were being asked to perform.

In the wave of health, safety, environmental, and consumer-protection legislation that burgeoned during the 1970s, Congress created programs under which administrative officials would be responsible for regulating hundreds of thousands of workplaces or pollution sources, or millions of consumer transactions. The agencies could not hope to accomplish these missions unless they were prepared to make liberal use of rulemaking authority.

The courts, too, encouraged broader use of rulemaking. Where an agency's authority to proceed by rulemaking was in doubt, they tended to find that the agency did have such authority. For example, in National Petroleum Refiners Ass'n v. FTC, 482 F.2d 672 (D.C.Cir.1973), the FTC proposed a regulation that would have required service stations to post octane ratings on gasoline pumps. Industry groups brought suit, pointing out that the Commission was attempting to make use of a half-century-old statutory provision that it had never before regarded as a source of authority to issue substantive rules. The court turned this challenge aside, declaring that the agency's power to make rules should be "interpret[ed] liberally" in light of the numerous benefits of administrative rulemaking. Similarly, the courts were unsympathetic to arguments that an agency's rulemaking authority should be construed narrowly in order to preserve regulated parties' right to a full hearing in adjudicative proceedings in which the rule might be applied. ....

... To this day, the rulemaking process remains one of the most dynamic areas of administrative law. ...

Much, much shorter Gellhorn & Levin: Since 1946, but especially since the 1970s, Congress and the courts have been pressuring federal agencies to make broader use of the rulemaking authority they've had for as long as the US has been a country, because it produces fairer outcomes and better compliance.

Shorter Collin Peterson: Federal agencies must be stripped of their longstanding authority to enforce the law fairly across industries because I like corn.

What did the people of Minnesota do to deserve this guy?

Update: Friends of the Earth highlight the ridiculous hypocrisy of Peterson's outburst:

... “It’s pretty stunning that less than two years ago, Peterson voted for the law requiring the EPA to account for this pollution, but he apparently now wants the EPA to break the law he voted for,” said Kate McMahon of Friends of the Earth. “The EPA indicated yesterday that it plans to follow that law instead of doing Peterson’s bidding, so now he throws a temper tantrum. It’s embarrassing.”

“But there is also something profoundly serious here,” said McMahon. “Climate destabilization threatens the livelihoods of the very farmers about whom Peterson purports to be concerned. According to a study by Lawrence Berkeley National Laboratory and Carnegie Institution, climate changes are already costing corn producers $1.2 billion per year worldwide, and according to a new Environment America report, the climate crisis is projected to cause $135 million a year in damages to corn production in Peterson’s home state of Minnesota. ..."