*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here.
For the most part, Executive Order 14,094 (“the Order”) closely follows in the footsteps of President Biden’s January 2021 memorandum on “Modernizing Regulatory Review” (“the Memorandum”). For instance, it is no surprise that the Order features both updated methodology for cost-benefit analysis and an increased emphasis on distributional analysis, given that the Memorandum called for OIRA to recommend revisions to OMB Circular A-4 and to “propose procedures that take into account the distributional consequences of regulations.” In both areas, the Order takes concrete action to make some of the previously announced commitments of the Administration more real in practice.
The Order also takes a genuinely surprising, and most welcome, turn. The Memorandum had urged OIRA to “consider ways that OIRA can play a more proactive role in partnering with agencies to explore, promote, and undertake regulatory initiatives that are likely to yield significant benefits,” and to “identify reforms that will promote the efficiency, transparency, and inclusiveness of the interagency review process.” The Order in turn delivers a reform at the intersection of the agenda-setting and public-participation mandates: namely, an augmented right to petition administrative agencies. The word petition appears nowhere in the Memorandum, but the Order makes petitions a centerpiece of the Biden Administration’s regulatory vision.
The Order spells out three basic steps that agencies must now take. First, they must “clarify opportunities for interested persons to petition for the issuance, amendment, or repeal of a rule under 5 U.S.C. 553(e).” Second, they must “endeavor to respond to petitions efficiently.” And, third, they must “maintain . . . a log of . . . petitions received, and share with the Administrator of [OIRA], upon request, information on the status of recently resolved and pending petitions.”
Many other scholars and commentators have praised the steps the Order takes on the petition front, and I join wholeheartedly in those celebrations. Petitioning has a long and illustrious history in American law, beginning with the robust practice of petitioning Congress that Maggie Blackhawk discusses in her historical work. That tradition made its way into the Administrative Procedure Act (APA) in Section 553(e), which requires that “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” This right marks one of the few opportunities for the public to directly influence agency agenda-setting, and, in light of the importance of agenda-setting in public policymaking, it therefore marks one of the most potentially democratic mechanisms in the APA. And it is not just a theory—in Massachusetts v. EPA, for instance, the Supreme Court clarified that agencies can indeed violate the APA by being too flippant when petitioners present an issue (in that case, whether to regulate greenhouse gas emissions from automobile tailpipes) and ask for the agency to do something. Petitions also have great potential as a crowdsourcing tool, as the general public (including regulated interests) often has unique, on-the-ground understanding of the need for regulatory updates and shifts in agency focus.
Despite all of this potential, rulemaking petitions have not been central to administrative practice except in extraordinary cases. Empirical data on petitioning activity are extremely hard to come by (more on this later), but in a study I did several years ago, I found that petitions are rarely submitted, rarely acknowledged with a response, and even more rarely granted. An ACUS study led by now-OIRA Administrator Richard Revesz and Jason Schwartz likewise found lengthy delays in processing petitions. Part of the holdup is clearly that it is easy for agencies to put the petitions they receive on the backburner. Although APA Section 706(1) allows litigants to “compel agency action unlawfully withheld or unreasonably delayed,” and although some court decisions have ordered agencies to produce responses to petitions (often in extreme-delay scenarios), the more typical response has been to defer to agency decisions to ignore petitions, even in light of some delays that seem objectively extreme. This is all part and parcel of a longstanding bias in administrative law of invoking resource allocation concerns to decline to monitor illegal agency inaction while ignoring those same considerations when deciding to monitor agency actions.
None of this will change because of Executive Order 14,094. In fact, the Order is riddled with caveats that bow to this institutional reality. It starts by limiting the implementation of the petitioning provisions generally to “the extent practicable and consistent with applicable law.” It also limits the explicit duty to respond to petitions “in light of agency judgments of available resources and priorities,” and it similarly waives the requirement to keep and produce a log of petitions when there are not “available resources.” This is all in addition to a gaping loophole in the Order—it only applies to petitions filed under Section 553(e) of the APA, not to petitions submitted pursuant to other statutes that similarly create petition rights. In practice, many petitions are non-APA petitions, and it seems that the Order provides an escape hatch for agencies that want to treat petitions the same way they always have.
These limits might make it seem like the Order is merely hortatory, but that’s not quite right. Looking deeper, the Order has laid the groundwork for a much more meaningful set of reforms than even the explicit duties in the Order, on its face, contemplate.
First, by requiring agencies to keep logs of petitions and produce them to OIRA, the Order has made it possible to imagine a much more robust practice of using “prompt letters” to enhance regulatory planning by OIRA. The basic idea would be to use lists and descriptions of pending petitions to identify petitions that are consistent with an administration’s overall regulatory strategy and to urge agencies to prioritize those actions. It is even possible to imagine using this method to structure retrospective review of regulations. Former OIRA Administrator John Graham experimented briefly with prompt letters during the George W. Bush Administration, but the practice has since been abandoned.
The Order does not mention prompt letters, but it is hard to read it without thinking about how the datafication of petitions through agency logs could be used to bring prompt letters back, and in more effective form. A transparent and real-time log of petitions seems much more likely to produce sound regulatory planning from OIRA. It is not clear how OIRA became aware of the dozen or so issues on which it decided to issue prompt letters in the past, but a more comprehensive list of petitions would likely give OIRA more information to work with as it decides which agenda items to prioritize, and they would help OIRA generate ideas that its staff may not be able to come up with on its own. Relatedly, if the logs are made public, OIRA’s choices about which petitions to prompt (and which ones not to prompt) would become more meaningful information for the public to use to evaluate OIRA’s performance. Much as OIRA’s production of data on its meetings with interested parties has allowed a healthy public debate about a potentially unhealthy amount of interest-group influence in regulatory review, production of petition data, along with OIRA’s own actions in response to the data, would foster more accountability for both agencies and OIRA in the crucial regulatory planning function.
Second, the logs of petitions may well move the needle on overly deferential judicial review of agency neglect of petitions. As mentioned above, courts are notoriously hands-off when it comes to ordering agencies to respond to petitions, typically citing resource allocation concerns as a justification for lax review. Part of the problem is that courts have no real baseline for comparison when asking how much delay is too much delay. For some courts, a five-year delay might seem unconscionable, while for others it might seem utterly run-of-the-mill. What courts need is information about what is normal, and the logs of petitions—properly designed and uniformly implemented—could help provide that information. If litigants could say that the delay on the response to their petition was one or two standard deviations above the mean response time for the agency or even for the administrative state as a whole, then it would be relatively easier for a court to conclude that agency action was unreasonably delayed notwithstanding resource constraints. Likewise, if agencies could defend their non-responses by saying that the time since submission is average, or even one or two standard deviations below the average, courts could more easily dismiss lawsuits brought by overeager parties. Unreasonable delay cases under Section 706(1) of the APA would be much easier to resolve if judges could take judicial notice of these revealed facts about institutional practice. The problem, historically, has simply been a lack of institutional data, and the Order has solved that problem by mandating much more comprehensive data collection.
If the petition reforms in Executive Order 14,094 are going to reinvigorate the prompt letter and enhance the fairness and administrability of judicial review of agency inaction, then it will be incumbent on OIRA Administrator Richard Revesz to use the discretion that the Order gives him to design the specific procedures and expectations for data collection in light of these goals. For instance, OIRA could issue guidance to agencies to submit one- or two-paragraph narrative descriptions of each petition received (rather than mere titles, as the Department of Education’s recently published petition log does) and a variety of standardized data fields (such as the identity of the party submitting the petition, the statutory authority for the rulemaking, etc.) that could help inform OIRA’s review of the logs. There are limits to how much information would be helpful rather than distracting and burdensome, but a literalistic reading of the Order’s requirements would not supply much meaningful information. OIRA should go well beyond this. Moreover, OIRA could require logs to be kept in a real-time computer system (although the Order merely requires agencies to “share” their logs with OIRA “upon request,” it seems possible to interpret that language as permitting a standing request to product real-time updates in a computer system that could be constantly monitored). Finally, although OIRA may not have as much discretion under the Order to bind agencies with respect to non-APA petitions, OIRA could certainly try to close that loophole by strongly suggesting that agencies consider providing information anyway, much as it has done in encouraging, but not requiring, independent agencies to submit cost-benefit analyses.
Overall, the Order’s petitioning reforms are loaded with upside. No doubt agencies will balk at many of the reforms in the Order, especially if they are augmented to serve the long-term strategy for petitioning outlined in this essay. Agencies are loath to give up the critical prerogative to decide when not to decide, and indeed there are good reasons to respect agency judgments of resource allocation, especially in a resource-constrained environment. Moreover, there is probably some risk that, as Susan Dudley suggests, the petition reforms could “backfire by inflating public expectations” about the efficacy of petitioning. There is nobody better than OIRA Administrator Richard Revesz—someone who has written extensively and generally positively about petitions—to balance these legitimate countervailing considerations against the growing need for a regulatory planning strategy that, in addition to monitoring the costs and benefits of proposed actions, acknowledges the possibility of under-regulation and inaction.
Daniel E. Walters is an Associate Professor of Law at Texas A&M University School of Law.