Jan. 30, 2015 -- The general counsel of the U.S. Environmental Protection Agency told a gathering at the University of Houston Law Center Wednesday that the agency is working hard to engage community members and other stakeholders as it develops new regulations.
But Avi S. Garbow said stakeholders, especially those from industry, also should endeavor to negotiate in good faith with the nation’s primary environmental regulatory agency.
Garbow was the lead speaker in the Environment, Energy & Natural Resources Center’s (EENR) Spring 2015 Speaker Series, which features prominent members of the environmental public sector community.
Garbow noted that the EPA is sued by various entities, including industry groups and states, on an average of about 150 times a year. Frequently, he said, the first time he hears from a lawyer on a particular issue is in the form of a notice of intent to sue.
Having come from the solution-oriented private sector before joining the EPA, he said, that initially struck him “a little odd, given all of the opportunities that exist out there to hopefully resolve disputes before burgeoning into lawsuits”.
Garbow noted that the EPA, like other regulatory agencies, cannot promulgate new regulations without first putting the proposal out for public view and comment. The primary intent of that is to test the elements of the proposal so that the final rule is as efficacious as possible.
“Everything that we do has to follow the science, follow the rule of law, be demonstrated to be under the authorities of the statutes that we administer,” he said.
Garbow said the EPA is continually working to expand its efforts for engagement, especially in developing new regulations. He particularly noted the agency’s community outreach in developing its Clean Power Plan, a sweeping effort to reduce the nation’s greenhouse gas emissions from power plants launched last summer.
Garbow said the CPP, which he called the most significant regulations the EPA is working on at present, has had perhaps the “most robust and effective” engagement process the agency has ever seen, with numerous stakeholder meetings and public hearings across the country. A final proposal should be rolled out this summer, after which individual states must submit their own plans to meet the CPP’s requirements. Full compliance must be achieved between 2020 and 2030.
“I would bet that the final rule, as it should and as you might expect, will look different from the proposal” because of the enormous input the EPA received during the engagement process, he said.
Other significant rulemaking proposals the EPA is currently engaged in deals with emissions of methane, a greenhouse gas, ozone standards and jurisdictional questions raised under the Clean Water Act.
While the EPA is working toward engaging with stakeholders, Garbow said, those stakeholders and their attorneys should also be willing to engage with the agency. That’s not always the case, he said, and many interest groups and even members of Congress often present information to the public that is “utterly not based in fact.”
He urged law students in the audience who might someday represent entities that have issues with regulations to try to bring some objectivity to the discussion.
“Lawyers have an obligation as part of the engagement to have hard conversations with their own clients,” he said. It’s important that good attorneys “not always adopt the hyperbole and the rhetoric” of their clients and “focus a little bit more on solutions and be a little bit of a moderating influence.
“When you all come to EPA, and you contribute through this engagement process, be constructive,” he said. “Have those hard conversations with your clients. By all means, have them with us. Ask questions, so that ultimately you can provide the good answers.
“Make your effort count by making us work a little bit harder with you,” he said.
The next speaker in the EENR Spring 2015 Speaker Series will be Irasema Coronado, executive director of the NAFTA Commission for Environmental Cooperation, on March 25. On a later date, Dr. Rafael Moure-Eraso, chairman of the U.S. Chemical Safety Board, will conclude the series.
Click to watch a video of Garbow’s presentation.