States, agencies, and legitimacy

Vanderbilt Law Review

Volumn 67, Issue 2, 2014, Pages 443-504

  Seifter, Miriam ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 84897540912     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (271)

1. Free Enter. Fund v. PCAOB, 130 S. Ct. 3138, 3156 (2010);
2. See, e.g., CORNELIUS M. KERWIN & SCOTT R. FURLONG, RULEMAKING 193-268 (2011) (describing participation by business groups and citizen organizations in the rulemaking process, as well as oversight by the President, Congress, and the courts);
3. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2246 (2001) ("The history of the American administrative state is the history of competition among different entities for control of its policies. All three branches of government-the President, Congress, and Judiciary-have participated in this competition; so too have the external constituencies and internal staff of the agencies.");
4. Cass R. Sunstein, Participation, Public Law, and Venue Reform, 49 U. CHI. L. REV. 976, 976 (1982) (describing efforts by "all three branches of the federal government" to "discipline and police the exercise of discretion by federal agencies").
5. See JAMES FREEDMAN, CRISIS AND LEGITIMACY 31-57 (1978) (describing the crisis of public ambivalence towards agency action). As one of Freedman's reviewers observed, "so constant has been the sense of crisis attending the agencies that the problem probably transcends the specific concerns that successive generations have voiced."
6. William H. Allen, The Administrative Process: Which Crisis?, 32 STAN. L. REV. 207, 208 (1979). Though the contours of the legitimacy dilemma have varied, the concerns continue to receive extensive attention.
7. See, e.g., Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 CHI.-KENT L. REV. 987, 987 (1997) ("Like an intriguing but awkward family heirloom, the legitimacy problem is handed down from generation to generation of administrative law scholars.");
8. Jerry L. Mashaw, Small Things Like Reasons Are Put in a Jar: Reason and Legitimacy in the Administrative State, 70 FORDHAM L. REV. 17, 19-26 (2001) (describing demands for administrative legitimacy);
9. Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511, 1512 (1992) ("Over the past century, the powers and responsibilities of administrative agencies have grown to an extent that calls into question the constitutional legitimacy of the modern federal bureaucracy.");
10. Sidney Shapiro et al., The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy, 47 WAKE FOREST L. REV. 463, 463 (2012) ("The history of administrative law in the United States constitutes a series of ongoing attempts to legitimize unelected public administration in a constitutional liberal democracy.");
11. Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1676, 1679-81 (1975) (discussing techniques for curtailing broad administrative discretion);
12. Michael P. Vandenbergh, The Private Life of Public Law, 105 COLUM. L. REV. 2029, 2035 (2005) ("Agencies are neither mentioned in the Constitution nor directly responsive to the electorate, leaving their democratic legitimacy unclear. Administrative law scholars have sought to ground the legitimacy of agency actions in a variety of theories.").
13. Vandenbergh, supra note 4, at 2031.
14. See, e.g., Evan J. Criddle, Fiduciary Foundations of Administrative Law, 54 UCLA L. REV. 117, 123 (2006) (noting that "agency 'legitimacy' is a contested concept resting on other contested concepts");
15. Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV. 1787, 1790 (2005) ("Those who appeal to legitimacy frequently fail to explain what they mean or the criteria that they employ.");
16. Jody Freeman, The Private Role in Public Governance, 75 N. Y. U. L. REV. 543, 557 (2000) ("The concept of legitimacy has remained usefully vague in administrative law theory, serving as a vessel into which scholars could pour their most pressing concerns about administrative power.").
17. Cass R. Sunstein, Factions, Self-Interest, and the APA: Four Lessons Since 1946, 72 VA. L. REV. 271, 291 (1986) [hereinafter Sunstein, Factions];
18. see also Thomas W. Merrill, Capture Theory and the Courts: 1967-1983, 72 CHI.-KENT L. REV. 1039, 1064-65 (1997) (describing increased judicial efforts, fueled by concerns regarding agency capture, to control agency action);
19. Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 66 (1985) [hereinafter Sunstein, Interest Groups] ("The constitutional status of administrative agencies has been uncertain precisely because they evade the ordinary constitutional safeguards against domination by powerful private groups.").
20. See Erin Ryan, Negotiating Federalism, 52 B. C. L. REV. 1, 28-29 (2011) ("[S]tate agents negotiate with federal policymakers just like any other lobby to protect their interests during federal lawmaking. These negotiations reflect the normal workings of our interest group representation model of governance, in which stakeholders leverage their representation to accomplish their preferences during the legislative process.");
21. see also ANNE MARIE CAMMISA, GOVERNMENTS AS INTEREST GROUPS 21-34 (1995) (discussing the interest group activity of state and local governments);
22. DONALD H. HAIDER, WHEN GOVERNMENTS COME TO WASHINGTON 20-31, 46-113 (1974) (tracing the history and efficacy of states' federal lobbying efforts).
23. See, e.g., Establishment of the Multi-State Plan Program for the Affordable Insurance Exchanges, 77 Fed. Reg. 72, 599 (proposed Dec. 5, 2012)
24. (to be codified at 45 C. F. R. pt. 800) (describing state involvement in healthcare reform implementation);
25. see also Gillian E. Metzger, Federalism Under Obama, 53 WM. & MARY L. REV. 567, 578-79 (2011) (describing state involvement in shaping Affordable Care Act regulations and implementation).
26. Dodd-Frank makes some state regulators nonvoting members of the Financial Stability Oversight Council, 12 U. S. C. § 5321 (b) (2) (2012), and requires the Consumer Financial Protection Bureau to institute a rulemaking when requested by a majority of states, id. § 5551.
27. Catherine M. Sharkey, Inside Agency Preemption, 110 MICH. L. REV. 521, 569 (2012) (describing the "uniqueness" of the EPA's relationship with states and noting that the "EPA and the states have developed a collaborative relationship as coregulators, particularly over the past twenty years"). Moreover, the EPA traditionally promulgates among the highest number of rules of any federal agency, increasing the opportunities for interaction and study.
28. See, e.g., OFFICE OF INFO. & REGULATORY AFFAIRS, REVIEW COUNTS, www.reginfo.gov (last visited Dec. 18, 2013).
29. See, e.g., William E. Cox, Evolution of the Safe Drinking Water Act: A Search for Effective Quality Assurance Strategies and Workable Concepts of Federalism, 21 WM. & MARY ENVTL. L. & POL'Y REV. 69, 90 (1997) (describing state involvement in development of the EPAs groundwater rule);
30. See, e.g., Bill Becker & Amy Royden-Bloom, TOGAs: The Fabric of Our Democracy, 40 ENVTL. L. REP. NEWS & ANALYSIS 10, 776, 10, 777 (2010) (describing state persuasion of the EPA to decrease the scope of the greenhouse gas permitting program);
31. OFFICE OF POLICY, ECON., & INNOVATION, ENVTL. PROT. AGENCY, EPA-231-F-06-004, SOLVING ENVIRONMENTAL PROBLEMS THROUGH COLLABORATION (2006), available at http://www.epa.gov/nscep/index.html (discussing EPA collaboration with states in developing the nonroad diesel rule).
32. A brief etymology may be in order. "Administrative federalism" historically has been used to describe the vertical structure of cooperative federalism. See, e.g., Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813, 942-43 & n. 422 (1998) (using "administrative federalism" to mean "a theory of nonfederal governments' entitlements that assumes that such governments will administer federal law but then ensures that they will enjoy a certain minimum of discretion in such implementation", such as existed in the Articles of Confederation). Hills notes that the term derives from the German system, where it describes an arrangement in which "the central government is forced to use the bureaucracy of the local governments to implement national law."
33. (citing ARTHUR B. GUNLICKS, LOCAL GOVERNMENT IN THE GERMAN FEDERAL SYSTEM 203 (1986));
34. see also Frank R. Strong, The Future of Federalism in the United States, 22 TEX. L. REV. 255, 275 (1944) (associating administrative federalism with "the passing down through administration of centrallydetermined policy").
35. A new era of administrative federalism has a more particular focus: to find ways within the administrative process and administrative law doctrine to further values associated with federalism and, in particular, the protection of state autonomy. See Stuart Minor Benjamin & Ernest A. Young, Tennis with the Net Down: Administrative Federalism Without Congress, 57 DUKE L. J. 2111, 2131-32 (2008) (describing the "surprising amount of interest" devoted to administrative federalism);
36. Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 DUKE L. J. 1933, 1939 (2008) (concluding that agencies "outperform" other branches in "allocating policymaking power" between federal and state governments);
37. Scott A. Keller, How Courts Can Protect State Autonomy from Federal Administrative Encroachment, 82 S. CAL. L. REV. 45, 48 (2008) (opining that "[i]t may be most important to protect federalism in the administrative law context" because "federal administrative regulations" can "reduce state autonomy without Congress ever addressing these federalism concerns");
38. Wayne A. Logan, The Adam Walsh Act and the Failed Promise of Administrative Federalism, 78 GEO. WASH. L. REV. 993, 1005, 1013 (2010) (canvassing existing administrative federalism literature and offering a case study in which "the posited federalism benefits of agency rulemaking did not come to fruition");
39. Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 741-42 (2004) (observing that although agencies "generally have significant incentives to take state concerns seriously", they are inferior to the other branches at valuing broader federalism values, such that courts should not grant Chevron deference to agency preemption decisions);
40. Gillian E. Metzger, Administrative Law as the New Federalism, 57 DUKE L. J. 2023, 2028 (2008) [hereinafter Metzger, New Federalism] (examining the possibilities of judicial use of administrative law "as a vehicle for addressing federalism concerns");
41. Catherine M. Sharkey, Federalism Accountability: "Agency- Forcing" Measures, 58 DUKE L. J. 2125, 2127-28 (2009) (concluding that "federal agencies⋯ surprisingly emerge as the best possible protectors of state regulatory interests" and that agencies should be "reform[ed]⋯ to ensure they can become a rich forum for participation by state governmental entities");
42. Amy Widman, Advancing Federalism Concerns in Administrative Law Through a Revitalization of State Enforcement Powers: A Case Study of the Consumer Product Safety and Improvement Act of 2008, 29 YALE L. & POL'Y REV. 165, 167-68 (2010) (exploring tools that promote state enforcement of federal regulatory law as a means of "restoring the federalism balance");
43. Ernest A. Young, Executive Preemption, 102 NW. U. L. REV. 869, 869 (2008) (noting that "[fjederal administrative action is, in important ways, considerably more threatening to state autonomy than legislation is" and recommending ways to limit administrative preemption);
44. cf Gillian E. Metzger, Federalism and Federal Agency Reform, 111 COLUM. L. REV. 1, 7 (2011) [hereinafter Metzger, Federal Agency Reform] (exploring the possibility that recent Supreme Court preemption decisions might "assign the states a special role in policing and reforming federal administration" ). By using the term here, I refer to this more recent incarnation of administrative federalism.
45. See Metzger, New Federalism, supra note 20, at 2109 ("[G]iven the breadth of Congress's constitutional powers today, the future of federalism lies in integrating protections for the states into agency deliberations and judicial review of agency action. ").
46. (citing Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 13-15, 23-36 (2004))).
47. In a forthcoming work, I disaggregate the goals of administrative federalism. See Miriam Seifter, States as Interest Groups in the Administrative Process, 99 VA. L. REV. (forthcoming September 2014). For purposes of this Article, it suffices to describe the objectives most commonly stated by leading scholars.
48. In particular, it is worth noting here that the procedural mechanisms I focus on in this Article are not necessarily the prime focus of most administrative federalism scholars. Much administrative federalism literature, for example, has focused on the level of deference (if any) that agencies should receive when taking actions that would preempt state law. See generally Nina A. Mendelson, A Presumption Against Agency Preemption, 102 NW. U. L. REV. 695, 706 (2008);
49. Robert R. M. Verchick & Nina A. Mendelson, Preemption and Theories of Federalism, in PREEMPTION CHOICE 13, 26-27 (William W. Buzbee ed., 2009) (noting concern that federal agencies are "focused on federal needs and powers" and are consequentially "ill-suited to weigh⋯ state and local interests in the course of accomplishing federal goals");
50. While administrative federalism scholars have not considered the legitimacy of agency-state consultation, they have considered "legitimacy" of another sort-the permissibility of courts imposing heightened standards when agency decisions implicate federalism values. Compare Metzger, New Federalism, supra note 20, at 2091-100 (arguing that courts can legitimately use both ordinary and special administrative law doctrines to serve federalism values)
51. Metzger, New Federalism, supra note 20, at 2086.
52. See, e.g., Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 331 (2000) (discussing the idea that preemption decisions "must be made legislatively, not bureaucratically" because of "the various safeguards against cavalier disregard of state interests created by the system of state representation in Congress").
53. See Metzger, New Federalism, supra note 20, at 2031-39
54. (analyzing administrative federalism principles in ADEC v. EPA, Gonzales v. Oregon, and Massachusetts v. EPA). Metzger also describes other federalism-related concerns evident in Supreme Court decisions, including concerns that decisions substantively intruded upon state interests. See id. at 2058-60.
55. 546 U. S. 243 (2006).
56. see Metzger, New Federalism, supra note 20, at 2056 & n. 123 ("[L]ack of consultation is a theme the Oregon majority returned to frequently, noting in particular that the attorney general [sic] failed to consult with Oregon notwithstanding Oregon's express request⋯."). The Court also stated that the interpretive rule intruded on the traditionally "local concern" of health and safety regulation.
57. See Gonzales, 546 U. S. at 271
58. (quoting Hillsborough Cnty v. Automated Med. Labs., Inc., 471 U. S. 707, 719 (1985)).
59. Wyeth v. Levine, 555 U. S. 555, 577 (2009) (deeming the FDA's "views on state law⋯ inherently suspect in light of [its] procedural failure" to "offer[] states or other interested parties notice or opportunity for comment" on the rule's preemptive effect);
60. see also Metzger, Federal Agency Reform, supra note 20, at 17 (noting "the majority's criticism of the FDA's failure to provide states with notice and an opportunity to comment on its changed preemption views or a detailed defense of that change").
61. 549 U. S. 497, 520 (2007).
62. see also Metzger, New Federalism, supra note 20, at 2057 (describing the role of administrative procedure in the Court's standing analysis).
63. See Am. Elec. Power Co., Inc v. Connecticut, 131 S. Ct. 2527, 2539-40 (2011) (noting that the agency can "seek the counsel of regulators in the states where the defendants are located").
64. See Geier v. Am. Honda Motor Co., 529 U. S. 861, 908 (2000) (Stevens, J., dissenting).
65. Some administrative law scholars not writing about federalism issues have occasionally mentioned the possibility of a state role in agency decisionmaking, but only in passing. See, e.g., Anne Joseph O'Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 VA. L. REV. 889, 911 n. 72 (2008) ("Other agencies and states can also pressure agencies.");
66. Wendy Wagner et al., Rulemaking in the Shade: An Empirical Study of EPA's Air Toxic Emission Standards, 63 ADMIN. L. REV. 99, 141 (2011) (noting that empirical results indicate substantial state participation in rulemaking and stating that further study is warranted "to better understand⋯ the role of the states").
67. See, e.g., DANIEL ELAZAR, FEDERALISM 161-65 (2d ed. 1972) (describing relationships that federal administrators have with state administrators and state interest groups). Donald Haider's useful volume adopts the term "government interest groups
68. See Judith Resnik et al., Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs), 50 ARIZ. L. REV. 709, 709-10 (2008). This Article focuses on the role of state officials and their associations, saving for another day examination of associations of local officials, which feature prominently in Haider and Resnik's studies.
69. The EPAs implementing guidance states that administrators should, "[o]f course,⋯ continue to work with your professional SIL government counterparts." ENVTL. PROT. AGENCY, EPAS ACTION DEVELOPMENT PROCESS, GUIDANCE ON EXECUTIVE ORDER 13132, at 20(2008), available at http://www.govexec.com/pdfs/111908rb1.pdf.
70. Similarly the OMB guidance states, "We understand that many agencies consult routinely with their professional counterparts in State and local governments (often civil servants, not elected officials)", and that while agencies must include elected officials in the consultation process, they should also "continue to work with their professional counterparts." OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, M-00-02, GUIDANCE FOR IMPLEMENTING E. O. 13132, at 4 (Oct. 28, 1999), available at http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory-matters-pdf/ m00-02.pdf.
71. (quoting Bertram Johnson, Associated Municipalities: Collective Action and the Formation of the State Leagues of Cities, 29 SOC. SCI. HIST. 549, 550 (2005))).
72. The "Big Seven" includes the National Governors Association, the National Conference of State Legislatures, the National Association of Counties, the U. S. Conference of Mayors, the Council of State Governments, the National League of Cities, and the International City/County Management Association. DAVID S. ARNOLD & JEREMY F. PLANT, PUBLIC OFFICIAL ASSOCIATIONS AND STATE AND LOCAL GOVERNMENT 15 n. 1 (1994).
73. JAMES Q. WILSON, THE POLITICS OF REGULATION 393 (1980);
74. see also Jacob Gersen, Designing Agencies, in RESEARCH HANDBOOK ON PUBLIC CHOICE AND PUBLIC LAW 333, 335 (Daniel A. Farber & Anne Joseph O'Connell eds., 2010) (noting the "general consensus in the literature that we simply do not know what the typical bureaucratic objective function looks like").
75. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915, 934 (2005) (explaining that most recent models of bureaucratic behavior suggest that bureaucrats are very responsive to politicians' preferences). The starting point for predicting bureaucratic behavior was William Niskanen's model of budget maximization.
76. See generally WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT, 36-42 (1971). In years since, Niskanen's account has been critiqued and updated, with emphasis on principalagent accounts.
77. See KENNETH A. SHEPSLE, ANALYZING POLITICS 407-41 (2d. ed. 2010) (collecting sources).
78. See JOHN D. NUGENT, SAFEGUARDING FEDERALISM 26-28 (2009) ("As heads of executive branches, governors can more easily articulate and enforce fealty to their administration's message.").
79. See, e.g., Seth Cline, Global Warming Text Was Removed from Virginia Bill on Rising Sea Levels, U. S. NEWS & WORLD REPORTS (June 13, 2012), http://www.usnews.com/news/articles/2012/06/13/global-warming-text-was-removed- from-virginia-bill-on-rising-sea-levels (describing recent legislative efforts in Virginia to remove climate change language from a proposed bill).
80. See Ellen Burford, The Need for Federal Regulation of Hydraulic Fracturing, 44 URB. LAW. 577, 583-85 (2012) (describing the incentives for states to loosely enforce their regulations on fracking and the advantages of federal regulation).
81. JAMES Q. WILSON, BUREAUCRACY 181 (1991).
82. See US GOV'T ACCOUNTABILITY OFFICE, GAO-07-883, EPA-STATE ENFORCEMENT PARTNERSHIP HAS IMPROVED, BUT EPA'S OVERSIGHT NEEDS FURTHER ENHANCEMENT 10 (2007) ("Many state officials expressed concerns about having limited flexibility, too much EPA control, and excessively detailed EPA oversight.").
83. Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. KAN. L. REV. 1113, 1124 (noting that states often can only agree on vague policy statements).
84. To be sure, states do not perceive all federal regulations as entailing unwelcome burdens, and even when they do, states may regard a particular federal regulation as providing a net benefit (or a necessary evil) if it comes with funding. See, e.g., Levinson, supra note 52, at 941 (stating federal spending is often desired by state officials). Still, it is not the norm for state interest groups to advocate for new or more stringent federal regulation. In one instance where such advocacy occurred, a contingent of the group's members ultimately revolted and started their own alternative group. See Jeremy P. Jacobs, Officials From 17 States Launch Splinter Group of Regulatory Agencies, GREENWIRE (Jan. 23, 2013), http://www.eenews.net/stories/1059975195 (describing rift within the National Association of Clean Air Agencies, which had been urging the federal government to take action on greenhouse gas regulation and to protect EPA's regulatory authority from proposed legislation that would have reduced it).
85. ENVTL. COUNCIL OF THE STATES, RES. 09-5, FUNDING FOR CLEAN AIR ACT PROGRAMS UNDER SECTIONS 103 AND 105 (2012) (recommending $301 billion to be made available to states through grants);
86. ENVTL. COUNCIL OF THE STATES, RES. 06-9, NATIONAL TRAINING STRATEGY IMPLEMENTATION AND FUNDING (Aug. 28, 2012) (requesting the EPA use any available funds to provide training for state air officials).
87. see also, e.g., ENVTL. COUNCIL OF THE STATES, RES. 00-1, ON ENVIRONMENTAL FEDERALISM (Mar. 20, 2012) (expressing the organization's "support for the concept of flexibility" and urging that, "to the maximum extent possible, the means of achieving [federal] goals should be left primarily to the states").
88. See Richard Lehne, Benefits in State-National Relations, 2 PUBLIUS 75, 80-81 (1972)
89. (citing SUZANNE FARKAS, URBAN LOBBYING (1970) (explaining the three objectives of state officials in defining their relationship with the federal government)).
90. This Article's focus on the EPA is consistent with the approach of generating insights by focusing study on a specific institution. See Edward L. Rubin, Commentary, The New Legal Process, the Synthesis of Discourse, and the Microanalysis of Institutions, 109 HARV. L. REV. 1393, 1425-30 (1996) (discussing the concept of microanalysis as a way to study how specific
91. RICHARD LAZARUS, THE MAKING OF ENVIRONMENTAL LAW 254 (2004).
92. Geier v. Am. Honda Motor Co., Inc., 529 U. S. 861, 909-10 (Stevens, J., dissenting) (mentioning that states are assured a "dialog" with agencies before regulations are passed through the notice-and-comment rulemaking procedures).
93. See, e.g., E. Donald Elliott, Re-Inventing Rulemaking, 41 DUKE L. J. 1490, 1492-93 (1992) (famously comparing notice-and-comment rulemaking to Japanese Kabuki Theater and stating that "[n]o administrator in Washington turns to full-scale notice-and-comment rulemaking when she is genuinely interested in obtaining input from interest parties").
94. Kathryn A. Watts, Proposing A Place for Politics in Arbitrary and Capricious Review, 119 YALE L. J. 2, 23 (2009) (noting that " agencies⋯ either fai[l] to disclose or affirmatively hid[e] political influences").
95. Cf. Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on A National Neurosis, 41 UCLA L. REV. 903, 906 (1994) ("We Americans love federalism⋯. It conjures up images of Fourth of July parades down Main Street, drugstore soda fountains, and family farms with tire swings in the front yard.").
96. Unfunded Mandates Reform Act of 1996, Pub. L. No. 104-4, 1996 U. S. C. C. A. N. (109 Stat.) 48
97. See Few Rules Trigger Unfunded Mandates Reform Act: Hearing Before the Subcomm. on Tech., Info. Policy, Intergovernmental Relations & Procurement Reform, Comm. on Oversight & Gov't Reform, 111th Cong. 2 (2011) (statement of Denise M. Fantone, Dir. Strategic Issues), available at http://www.gao.gov/ assets/130/125488.pdf.
98. See, e.g., Utility MACT for Coal and Oil-Fired Electric Utility Units, 77 Fed. Reg. 9304, 9438-39 (Feb. 16, 2012) (stating that the rule "may result in expenditures of $100 million or more for state, local, and tribal governments" and thus triggered the UMRA's requirements).
99. The Federalism Order's back story reveals state influence. Revoking the previous Reagan order on federalism, President Clinton issued a much less state-oriented Executive Order 13, 083. See Exec. Order No. 13, 083, Federalism, 3 C. F. R. 146, 148 (1999) (revoking Executive Orders 12, 612 and 12, 875). States were outraged; the order was perceived as a step backward for state sovereignty, and the administration had failed to consult the states in developing it.
100. See David S. Broder, Executive Order Urged Consulting, but Didn't; State, Local Officials Want Federalism Say, WASH. POST, July 16, 1998, at A15 (stating representatives of state and local governments wrote a letter to President Clinton demanding the Order be withdrawn);
101. See Exec. Order No. 13, 095, 3 C. F. R. 202 (1999) (suspending Executive Order 13, 083).
102. Executive Order 13, 132 followed. Exec. Order No. 13, 132, 3 C. F. R. 206 (2000);
103. see David S. Broder, Federalism's New Framework; Revised Order Satisfies State and Local Officials, WASH. POST, Aug. 5, 1999, at A21.
104. See Exec. Order No. 13, 132, 64 Fed. Reg. 43, 255, at 43, 257-58 (outlining the consultation process);
105. See White House Letter on Consultation and List of 'Representative National Organizations' Contacts to Donald J. Borut, Executive Director of the National League of Cities (Mar. 9, 2000)
106. reprinted in ENVTL. PROT. AGENCY, supra note 46 (Attachment C), available at http://www.govexec.com/pdfs/111908rb1.pdf.
107. See Federalism: Implementation of Executive Order 12612 in the Rulemaking Process: Testimony Before the S. Comm. on Governmental Affairs, 106th Cong. 1 (1999) (statement of L. Nye Stevens, Director, Federal Management and Workforce Issues) (stating that federalism assessments were rarely conducted).
108. See ENVTL. PROT. AGENCY, supra note 46, at 21 (discussing the EPAs consultation policy). Sharkey has observed that the EPA "stands apart" from other agencies in its track record on agency-state relations. Sharkey
109. See ENVTL. PROT. AGENCY, supra note 46, at 6 (defining what the EPA considers to be "substantial compliance costs").
110. see also Exec. Order No. 13, 132, 64 Fed. Reg. 43, 255, 43, 258 (requiring agencies to consult with state or local officials prior to promulgating a rule that preempts state or local laws).
111. See Preemption: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 24, 693, 24, 693-94 (May 20, 2009) (directing agencies to limit their preemption attempts and to conduct a ten-year retrospective review of preemptive provisions to determine their compliance with federalism principles).
112. Examples of Affordable Care Act rulemakings that involved consultations with states include: Health Insurance Market Rules, Rate Review, 77 Fed. Reg. 70, 584, 70, 610 (Nov. 26, 2012)
113. (to be codified at 45 C. F. R. pts. 144, 147, 150, 154 & 156);
114. Establishment of Exchanges and Qualified Health Plans, Exchange Standards for Employers, 77 Fed. Reg. 18, 310, 18, 443 (Mar. 27, 2012)
115. (to be codified at 45 C. F. R. pts. 155-57);
116. Establishment of the Multi-State Plan Program for the Affordable Insurance Exchanges, 77 Fed. Reg. 72, 582, 72, 599-600 (Dec. 5, 2012)
117. (to be codified at 45 C. F. R. 800).
118. cert. denied sub nom., Safari Club Int'l v. Jewell, 2013 WL 3948014 (U. S. 2013).
119. See 42 U. S. C. § 18053 (creating interstate "health care choice compacts"); id. § 300gg (defining the "permissible age bands" for rate-setting purposes);
120. These requirements are described in Timothy Stoltzfus Jost, Reflections on the National Association of Insurance Commissioners and the Implementation of the Patient Protection and Affordable Care Act, 159 U. PA. L. REV. 2043, 2045 (2011) (describing the NAIC's role in implementing the Affordable Care Act).
121. See, e.g., Agreement between CFPB and CSBS, CFPB-State Supervisory Coordination Framework (May 7, 2013), available at http://www.csbs.org/ regulatory/Cooperative-Agreements/Documents/2013-CFPB.pdf (outlining a supervisory agreement between the Consumer Financial Protection Bureau and the Conference of State Bank Supervisors);
122. See Morton Grodzins, The Federal System (1960), reprinted in AMERICAN INTERGOVERNMENTAL RELATIONS 54 (Laurence O'Toole ed., 4th ed. 2007);
123. 42 U. S. C. §§ 7401-642.
124. See Philip J. Weiser, Chevron, Cooperative Federalism, and Telecommunications Reform, 52 VAND. L. REV. 1, 19 (1999). An extensive legal literature documents the dynamics and implications of cooperative federalism regimes.
125. See, e.g., id.; Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L. J. 1256 (2009) (describing phenomenon of states challenging federal authority when implementing statutes);
126. Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 YALE L. J. 534 (2011) (addressing statutory interpretation questions raised by statutes that designate states as implementers).
127. See EPA & ECOS, ENVIRONMENTAL POLLUTANT REPORTING DATA IN EPA'S NATIONAL SYSTEMS: DATA COLLECTION BY STATE AGENCIES 1 (Sept. 30, 1999) (study finding that "states are responsible for 83 to 99 percent of the environmental pollutant data contained in six key EPA data systems").
128. See Margaret H. Lemos, State Enforcement of Federal Law, 86 N. Y. U. L. REV. 698, 737 (2011) (arguing that state enforcement of federal law allows states to shape policy).
129. Jonathan H. Adler, Judicial Federalism and the Future of Federal Environmental Regulation, 90 IOWA L. REV. 377, 454 (2005) ("[M]ost environmental monitoring and enforcement occur at the state and local level.").
130. See, e.g., Mark Totten, Credit Reform and the States: The Vital Role of Attorneys General After Dodd-Frank, IOWA L. REV. (forthcoming), available at http://ssrn. com/abstract=2207726 (discussing the role of state attorneys general under the Dodd-Frank Act).
131. Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 278 (2000) [hereinafter Kramer, Political Safeguards];
132. Larry D. Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1493 (1994) [hereinafter Kramer, Understanding Federalism].
133. See Kramer, Understanding Federalism, supra note 112, at 1554 (discussing how alliances form between federal and state officials).
134. 2 U. S. C. § 1534 (b) (2012).
135. Ass'n of Am. Physicians & Surgeons, Inc v. Clinton, 997 F.2d 898, 903 (D. C. Cir. 1993).
136. CONG. BUDGET OFFICE, COST ESTIMATE FOR H. R. 3124, FEDERAL ADVISORY COMMITTEE ACT AMENDMENTS OF 2011, at 2(2012), available at http://www.cbo.gov/ sites/default/files/cbofiles/attachments/hr3124.pdf.
137. President Clinton ordered agencies to terminate at least one-third of FACA-covered advisory committees and to strictly limit the formation of any new committees. See Exec. Order No. 12, 838, 58 Fed. Reg. 8207 (Feb. 10, 1993).
138. See OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, M-95-20, GUIDELINES AND INSTRUCTIONS FOR IMPLEMENTING SECTION 204 (Sept. 21, 1995), available at http://www.gsa.gov/portal/content/101011.
139. Thus, consultations under a historic preservation plan among a group that included federal officials as well as state, local, and tribal officials were not subject to FACA. See Wyo. Sawmills, Inc v. U. S. Forest Serv., 179 F. Supp. 2d 1279, 1304-05 (D. Wyo. 2001)
140. aff'd, 383 F.3d 1241 (10th Cir. 2004).
141. See generally EPA-STATE/ECOS JOINT ACTIVITIES, CALENDAR YEAR 2013 (on file with author) (listing active workgroups).
142. See ENVTL. PROT. AGENCY, GUIDING PRINCIPLES FOR RULE DEVELOPMENT (May 31, 2002) (on file with author). The stated purpose of the principles is "to guide the State/EPA coregulator partnership in the development of better, more common sense drinking water regulations." Id.
143. Comment Letter from Steven Gunderson, ACWA, to Denise Keeher, USEPA (Dec. 14, 2012), available at http://www.acwa-us.org/!-letters.
144. See, e.g., ENVTL. COUNCIL OF THE STATES, ECOS ANNUAL REPORT (2012), available at http://www.ecos.org/files/4866-file-2012-Annual-Report.pdf;
145. Ass'n of Clean Water Admins., Weekly Wrap, Nov. 12-16 (2012) (on file with author);
146. State/EPA Workgroup on Work Prioritization (2011), available at http://www.westar.org/Docs/Business%20Meetings/Fall11/06. 3%20Top%2010%20Opportunities%20for%20Greater%20Efficiency%20or%20Reduced%20Bur den%20Without%20Compromising%20Public%20Health.pdf.
147. Rena I. Steinzor, Unfunded Environmental Mandates and the "New (New) Federalism": Devolution, Revolution, or Reform?, 81 MINN. L. REV. 97, 216 (1996).
148. See EPA Interpretive Memorandum, Consumer Confidence Report Rule Delivery Options (Jan. 3, 2013) (allowing electronic delivery), available at http://water.epa.gov/lawsregs/rulesregs/sdwa/ccr/upload/ ccrelectronicdeliveryppt.pdf;
149. see also ENVTL. PROT. AGENCY, CONSIDERATION OF REGULATORY REVISIONS IN SUPPORT OF THE SECOND SIX-YEAR REVIEW OF THE NATIONAL PRIMARY DRINKING WATER REGULATIONS, at B-7 to B-8(2009), available at http://water.epa.gov/lawsregs/ rulesregs/regulatingcontaminants/sixyearreview/second-review/upl oad/Consideration-of-Other-Regulatory-Revisions-in-Support-of-the-Second-Six- Year-Review.pdf (describing "joint EPA/State workgroup").
150. See, e.g., ENVTL. PROT. AGENCY, SUSTAINABLE MATERIALS MANAGEMENT (2009) (discussing state-EPA workgroup conclusions regarding waste and materials management).
151. EPA-STATE/ECOS JOINT ACTIVITIES, supra note 130.
152. see also Metzger, New Federalism, supra note 20, at 2085
153. See Kramer, Political Safeguards, supra note 112, at 284-85 (explaining that states have influence over federal officials because the federal government depends on state officials to implement federal programs);
154. Kramer, Understanding Federalism, supra note 112, at 1522 (listing "factors and processes that influence lawmakers to take the interests of state officials and state institutions into account").
155. see also Metzger, New Federalism, supra note 20, at 2085-86 (pointing to the studies reflecting agencies' poor track record with the Federalism Order as a possible reason that "notice-and-comment rulemaking may not actually yield significant federalism benefits", and concluding that "the jury is still out"). As noted earlier, scholars have recognized that this pattern may be starting to change, and in any event, there are numerous other channels for state interaction with federal agencies.
156. Kramer, Understanding Federalism, supra note 112, at 1544.
157. See Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule Step 3 and GHG Plantwide Applicability Limits, 77 Fed. Reg. 41, 051 (July 12, 2012) (explaining the need to set a higher emissions threshold because a lower one would not be feasible for states);
158. See Kramer, Understanding Federalism, supra note 112, at 1551-52.
159. See, e.g., Barry G. Rabe, Racing to the Top, the Bottom, or the Middle of the Pack? The Evolving State Government Role in Environmental Protection, in ENVIRONMENTAL POLICY 30, 49 (8th ed. 2013) (noting that former EPA Administrator Lisa Jackson and current Administrator Gina McCarthy, both former state environmental commissioners, "repeatedly emphasized their desire to work collaboratively with each state rather than impose one approach from Washington").
160. See, e.g., Letter from Sec'y Kathleen Sebelius, Health & Human Servs., to Governors (Dec. 10, 2012), available at http://www.cms.gov/CCIIO/ Resources/Files/Downloads/gov-letterfaqs-12-10-2012.pdf ("As both a former governor and state insurance commissioner, I believe that states are in the best position to make decisions about their health insurance marketplaces.").
161. Kramer, Understanding Federalism, supra note 112, at 1528-42;
162. Kramer, Political Safeguards, supra note 112, at 278-87;
163. See, e.g., Control of Emissions from New Marine Engines, 75 Fed. Reg. 22, 896, 22, 916 (Apr. 30, 2010) (granting certain exemptions to "existing steamships operating exclusively on the Great Lakes");
164. Diana Marrero, Obey Measure Could Block New EPA Ship Pollution Regulations, MILWAKUEE J.-SENTINEL (Oct. 12, 2009), http://www.jsonline.com/ news/wisconsin/64057622.html (describing efforts by congressman David Obey to exempt Great Lakes ships from vessel air pollution regulations).
165. See, e.g., Timothy Zick, Statehood As the New Personhood: The Discovery of Fundamental "States' Rights", 46 WM. & MARY L. REV. 213, 216 (2004) (discussing the "renaissance" of states' rights in modern constitutional scholarship).
166. See EME Homer City Generation, L. P v. EPA, 696 F.3d 7, 37 (D. C. Cir. 2012) (holding that the EPA exceeded its statutory authority in its regulation of states' "good neighbor obligations")
167. cert. granted, 133 S. Ct. 2857 (2013).
168. State and Local Petitioners' Opening Brief at 42-56
169. Homer City, 696 F.3d 7 (No. 11-1302)
170. 2012 WL 4754613;
171. see also Press Release, Tex. Att'y Gen., Texas Scores Another Victory Against EPA (Aug. 21, 2012), available at https://www.oag.state.tx.us/oagnews/ release.php?id=4126 (commenting on the D. C. Circuit's ruling on EPA's Cross-State Air Pollution Rule).
172. Homer City, 696 F.3d at 33.
173. See Press Release, Chairman Hall Statement on the Cross-State Air Pollution Rule (Aug. 21, 2012), available at http://science.house.gov/press- release/chairman-hall-statementcross-state-air-pollution-rule (applauding the invalidation of the rule).
174. see also Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N. Y. U. L. REV. 461, 462 (2003) ("From the birth of the administrative state, we have struggled to describe our regulatory government as the legitimate child of a constitutional democracy.").
175. Glen Staszewski, Political Reasons, Deliberative Democracy, and Administrative Law, 97 IOWA L. REV. 849, 856 (2012).
176. See, e.g., David Arkush, Democracy and Administrative Legitimacy, 47 WAKE FOREST L. REV. 611, 612 (2012) (connecting legitimacy to "public perceptions of legality, propriety, and efficacy").
177. See James O. Freedman, Crisis and Legitimacy in the Administrative Process, 27 STAN. L. REV. 1041, 1043 (1975);
178. Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 HARV. L. REV. 1276, 1284 (1984) (noting that "current legal theorists often merge all four models together");
179. Richard B. Stewart, Administrative Law in the Twenty-First Century, 78 N. Y. U. L. REV. 437, 443-44 (2003) ("The earlier approaches have not disappeared. Administrative law has been profoundly conserving.").
180. See, e.g., Nina A. Mendelson, Agency Burrowing: Entrenching Policies and Personnel Before A New President Arrives, 78 N. Y. U. L. REV. 557, 580 (2003) ("[T]he dominant version of the principal-agent approach to the democratic legitimacy of administrative agencies is now the presidential control model⋯.");
181. see also Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 35 (1995) (discussing the incentive of the President, as the only nationally elected official, to address the needs of the majority of the American people). Although this view is widely accepted, it is not without critics. Matthew Stephenson, for example, has argued that presidentialism does not increase the majoritarian responsiveness of bureaucratic policy.
182. See Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 MICH. L. REV. 53, 64 (2008);
183. see also Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. REV. 1217, 1231-46 (2006) (challenging the conventional wisdom that the President has a more national and less parochial outlook than Congress).
184. See Oil and Gas; Well Stimulation, Including Hydraulic Fracturing on Federal and Indian Lands, 77 Fed. Reg. 27, 691 (proposed May 11, 2012)
185. (to be codified at 43 C. F. R. pt. 3160) (proposing to regulate hydraulic fracturing on public lands).
186. See, e.g., John M. Broder, Regulations on Fracking Are Revised, N. Y. TIMES (Jan. 18, 2013), http://www.nytimes.com/2013/01/19/us/regulations-on- fracking-are-revised.html?-r=0 (noting that the Department of Interior will revise its proposed hydraulic fracturing regulations, which were "opposed by oil companies and state officials");
187. See Neil K. Komesar, A Job for the Judges: The Judiciary and the Constitution in a Massive and Complex Society, 86 MICH. L. REV. 657, 671 (1988) (defining and distinguishing majoritarian and minoritarian bias).
188. Steven P. Croley & William F. Funk, The Federal Advisory Committee Act and Good Government, 14 YALE J. ON REG. 451, 466 (1997).
189. See, e.g., Evan H. Caminker, Judicial Solicitude for State Dignity, 574 ANNALS AM. ACAD. POL. & SOC. SCI. 81, 83 (2001) (describing the Supreme Court's "focus on state dignitary interests").
190. This might be reason to worry about a form of the "conduit communications" Judge Wald famously discussed in the renowned smoke-scrubbing case, Sierra Club v. Costle, 657 F.2d 298, 405 n. 520 (D. C. Cir. 1981). There, the fear was that "administration or inter-agency contacts serve as mere conduits for private parties in order to get the latter's off-the-record views into the proceeding."
191. Douglas A. Kysar, Commentary: Politics by Other Meanings: A Comment on "Retaking Rationality Two Years Later", 48 HOUS. L. REV. 43, 52 (2011);
192. see also Thomas O. McGarity & Rena I. Steinzor, The End Game of Deregulation: Myopic Risk Management and the Next Catastrophe, 23 DUKE ENVTL. L. & POL'Y F. 93, 112-36 (2012) (presenting case study of attempts to regulate coal ash).
193. See LINDA LUTHER, CONG. RESEARCH SERV., R42570, PROPOSALS TO AMEND RCRA: ANALYSIS OF PENDING LEGISLATION APPLICABLE TO THE MANAGEMENT OF COAL COMBUSTION RESIDUALS 3-4 (2012) (noting that as much as 130 million tons of CCRs were generated in 2010, and that the EPAs data showed potential threats to human
194. see also Shaila Dewan, At Plant in Coal Ash Spill, Toxic Deposits by the Ton, N. Y. TIMES, Dec. 30, 2008, at A14 (chronicling the breach and EPA's response).
195. See Disposal of Coal Combustion Residuals from Electric Utilities, 75 Fed. Reg. 35, 128, 35, 133-34 (proposed June 21, 2010)
196. (to be codified at 40 C. F. R. pts. 257, 261, 264, 265, 268, 271 & 302) (describing two alternative proposals for regulating coal combustion residuals under the Act).
197. See No Time Frame Set for Completing Final Coal Ash Regulations, EPA Says, 44 ENV'T REP. (BNA) 91 (Jan. 11, 2013) (quoting EPA assistant administrator Mathy Stanislaus).
198. See Disposal of Coal Combustion Residuals from Electric Utilities, 75 Fed. Reg. 35, 226 (describing meetings).
199. See, e.g., Comment Letters, ASS'N ST. & TERRITORIAL SOLID WASTE MGMT. OFFICIALS, http://www.astswmo.org/Pages/Policies-and-Publications/ASTSWMO- Comment-Letters.html (last visited Oct. 10, 2013) (collecting the Association's comments);
200. Policy Letters, ENVTL. COUNCIL STATES, http://ecos.org/section/policy/ letters (last visited Oct. 10, 2013) (collecting letters written by the Council to various political actors).
201. See Resolution 08-14, The Regulation of Coal Combustion Residuals, ENVTL. COUNCIL STATES, http://dl.dropboxusercontent.com/u/8005220/Resolutions/ Resolution%20Number%2008-14%20CCR%20v2013.pdf (last modified Mar. 5, 2013) (arguing that "additional federal CCR regulations would be duplicative of most state programs").
202. See, e.g., Letter of Support for the Coal Residuals Re-use and Management Act from R. Steven Brown, Exec. Dir., Envtl. Council of the States, to John Shimkus, Chairman, House Subcomm. on Env't & Econ. (Oct. 12, 2011), available at http://www.ecos.org/files/4594-file-ECOS-Letter-to-Shimkus-on-CCR. pdf (asserting that proposed changes to the Coal Residuals Re-use and Management Act will afford states "a maximum of flexibility" in regulating coal combustion residuals and will "assure the quickest implementation").
203. See Comment Letter on Proposed Rulemaking for Disposal of Coal Combustion Residuals from Electric Utilities from R. Steven Brown, Exec. Dir., Envtl. Council of the States, to EPA (Nov. 19, 2010), available at http://ecos.org/ files/4303-file-CCW-Comment-Letter-to-EPA-November-2010.pdf (contending that additional federal regulation of coal combustion residuals "should not be adopted" because state-level regulation is sufficient).
204. The legislative history of the proposed coal-ash bills in the House and Senate are replete with such remarks. See, e.g., Rhetoric vs. Reality: Does President Obama Really Support an "Allof-the-Above" Energy Strategy?: Hearing Before the H. Comm. on Oversight & Gov't Reform, 112th Cong. 6 (2012) (statement of Sec'y Michael Krancer, Dep't of Envtl. Prot., Commw. of Pa.) (stating that hazardous waste classification of coal ash would be "devastating in my State, and other States, too⋯. There is no scientific justification for it; there is no legal justification for it. It would cause the loss of between 180, 000 jobs and 316, 000 jobs and cost between $78 billion and $110 billion over 20 years.");
205. Jason Fordney, Investor Groups Say Coal Ash Is Hazardous, ELECTRIC POWER DAILY, Sept. 16, 2010, at 2
206. 2010 WLNR 19407122:
207. Press Release, Rep. Ed Whitfield, Whitfield Supports Kentucky Coal and Jobs, Votes to Reuse Coal Ash Responsibly (Oct. 14, 2011), available at http://whitfield.house.gov/press-release/whitfield-supports-kentucky-coal-and- jobs-votes-reuse-coal-ash-responsibly (proposing legislation that would bar EPA from reclassifying coal ash as a hazardous waste, and stating that "[cjountless people across Kentucky make their living from Kentucky's coal industry and this commonsense bill would ensure that we keep those jobs in place").
208. See JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 154-55 (1938).
209. Mark Seidenfeld, A Syncopated Chevron: Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes, 73 TEX. L. REV. 83, 90 (1994).
210. See, e.g., Peter L. Strauss, From Expertise to Politics: The Transformation of American Rulemaking, 31 WAKE FOREST L. REV. 745, 753 (1996) (noting that, in the mid-twentieth century, "[t]he dominant understanding was that agency action was 'expert', intended to operate at some remove from politics");
211. see also Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 TEX. L. REV. 15, 20 (2010) ("Related to the goal of expertise is a desire to insulate agency decisions from the sort of political horse-trading that is anathema to impartial decision making. In this sense, expertise and nonpartisanship can be seen as two sides of the same coin. " (footnote omitted)).
212. (quoting Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 696 (2000)).
213. See Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395, 435 (1995) (describing a view that "administrative action" is "now seen by all to be essentially 'political'").
214. See Nina A. Mendelson, Disclosing "Political" Oversight of Agency Decision Making, 108 MICH. L. REV. 1127, 1129 (2010) (describing scholars' arguments that administrative policy "may not be particularly defensible and may even be outright tainted" if executive influence is involved);
215. See, e.g., Lawrence Lessig and Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 99-100 (1994) (noting that "the importance of expertise in providing the foundation for sound public judgments" remains "an enduring theme in administrative law"); Watts, supra note 74, at 30 (noting that "many scholars seem to accept the desirability of our current system's focus on expertise and science", and others "have spoken affirmatively about the virtues of expertise and insulation and the negative aspects of politics").
216. See STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE 61 (1993).
217. See Chevron, U. S. A., Inc v. Natural Res. Def. Council, Inc., 467 U. S. 837, 865-66 (1984);
218. cf. Balt. Gas & Elec. Co v. Natural Res. Def. Council, Inc., 462 U. S. 87, 103 (1983) (stating that a court should be "at its most deferential" when an agency makes decisions "within its area of special expertise, at the frontiers of science").
219. For commentary, see generally Emily Hammond Meazell, Presidential Control, Expertise, and the Deference Dilemma, 61 DUKE L. J. 1763, 1771 (2012) (describing the "important role" of expertise "as an anchor of regulatory legitimacy that has shaped the relationship between courts and agencies").
220. 463 U. S. 29 (1983).
221. See 549 U. S. 497, 533 (2007) (rejecting the EPA's "laundry list of reasons not to regulate", which included the President's priorities).
222. Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 SUP. CT. REV. 51, 52.
223. See Aera Energy LLC v. Salazar, 642 F.3d 212, 220 (D. C. Cir. 2011) (describing a line of cases in which "politics has impermissibly infected an agency decision").
224. See New State Ice Co v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may⋯ serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.").
225. See, e.g., DENISE SCHEBERLE, FEDERALISM AND ENVIRONMENTAL POLICY 2-7 (2d ed. 2004);
226. cf. Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 374 (1998) ("[I]t is necessary to take full account of local topography, wind conditions, and economic activity to determine the exposure of a particular population to various environmental risks.").
227. Ann E. Carlson, Iterative Federalism and Climate Change, 103 NW. U. L. REV. 1097, 1106 (2009) (summarizing arguments of devolution proponents).
228. See also Alaska Dep't of Envtl. Conservation v. EPA, 540 U. S. 461, 488 (2004) ("A state agency, no doubt, is best positioned to adjust for local differences in raw materials or plant configurations⋯.").
229. See Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N. Y. U. L. REV. 1, 19-22 (2007) (describing key role of state and local politicians as "natural policy entrepreneurs who can significantly influence what sorts of conditions are publicly recognized as problems"). One standard explanation for state innovation is that states are said to compete with one another for residents and capital.
230. See, e.g., Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484, 1498 (1987)
231. (reviewing RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN (1987)) (describing the phenomenon of innovation through competition). Hills offers several additional reasons: state politicians need to make a name for themselves in order to challenge federal incumbents in political races, state politicians have greater innovative flexibility because they can more easily externalize the costs of their policies to other states, and different constituencies and interest groups in different states lead to policies that are not coextensive with the federal policy agenda.
232. (citing Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 399 (1997)
233. and DAVID L. SHAPIRO, FEDERALISM 87-88 (1995)).
234. 540 U. S. 461 (2004).
235. See, e.g., Carrie Gombos, Alaska Department of Environmental Conservation v. E. P. A., 28 HARV. ENVTL. L. REV. 537, 545-46 (2004):
236. TVA v. Hill, 437 U. S. 153 (1978).
237. Dan Joling, Alaska Officials Pan Endangered Species Law, ANCHORAGE DAILY NEWS (Nov. 15, 2011), http://www.adn. com/2011/11/15/2173091/alaska-officials- pan-endangered.html.
238. See In re Polar Bear Endangered Species Act Listing & Section 4 (d) Rule Litig.-MDL No. 1993, 709 F.3d 1, 17-18 (D. C. Cir.), cert. denied sub nom.
239. Safari Club Int'l v. Jewell, 2013 WL 3948014 (U. S. 2013).
240. 642 F.3d 212, 215-16 (D. C. Cir. 2011).
241. Opening Brief of Appellants at 23, Aera Energy, 642 F.3d 212 (Nos. 10-5101, 10-5110)
242. 2010 WL 4234745.
243. Aera Energy, 642 F.3d at 216-17.
244. Opening Brief of Appellants, supra note 248, at 23-24.
245. Aera Energy, 642 F.3d at 216 (quoting the Regional Director's deposition).
246. 657 F.2d 298 (D. C. Cir. 1981).
247. Antonin Scalia, The Role of the Judiciary in Deregulation, 55 ANTITRUST L. J. 191, 197-98 (1986).
248. Rachel E. Barkow, Sentencing Guidelines at the Crossroads of Politics and Expertise, 160 U. PA. L. REV. 1599, 1601 (2012).
249. Cass R. Sunstein, The Arithmetic of Arsenic, 90 GEO. L. J. 2255, 2257 (2002) (describing controversy over the regulation of arsenic).
250. Merrick B. Garland, Deregulation and Judicial Review, 98 HARV. L. REV. 505, 586 (1985).
251. See Matthew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165, 165 (1984) (describing congressional control over agencies);
252. see also Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431, 432 (1989) (discussing the importance of administrative structures in assuring that administrative adherence to congressional preferences).
253. See, e.g., Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61, 67 (2006) (detailing Congress's oversight and involvement in administration, including through periodic reports from agencies to Congress, numerous hearings, and the efforts of the Government Accountability Office (GAO) to uncover problems).
254. See, e.g., David B. Spence, Managing Delegation Ex Ante: Using Law to Steer Administrative Agencies, 28 J. LEGAL STUD. 413, 418-19 (1999) (describing the lack of empirical support for the structure and process hypothesis, and the difficulty of obtaining it);
255. JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE 23-30 (1997) (describing challenges to positive political theory).
256. See La. Pub. Serv. Comm'n v. FCC, 476 U. S. 355, 374 (1986) (an agency "literally has no power to act⋯ unless and until Congress confers power upon it").
257. This, of course, is also a pillar of Chevron and its progeny. Chevron, U. S. A., Inc v. Natural Res. Def. Council, Inc., 467 U. S. 837, 842-43 (1984) ("First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.").
258. Jessica Bulman-Pozen has described how states may sometimes check "a wayward federal executive branch" by "cast[ing] themselves as faithful agents of Congress, seeking to carry out a statute as Congress intended." Jessica Bulman-Pozen, Federalism as a Safeguard of the Separation of Powers, 112 COLUM. L. REV. 459, 489 (2012).
259. See PREVENTING REGULATORY CAPTURE: SPECIAL INTEREST INFLUENCE AND HOW TO LIMIT IT (Carpenter & Moss eds., Cambridge Univ. Press 2013).
260. JOHN HART ELY, DEMOCRACY AND DISTRUST 135 (1980).
261. See William Funk, Public Participation and Transparency in Administrative Law-Three Examples as an Object Lesson, 61 ADMIN. L. REV. 171, 174 (2009) (discussing statutes intended to increase transparency and public participation).
262. Sunstein, Factions, supra note 9, at 283-84:
263. see, for example, STEVEN P. CROLEY, REGULATION AND PUBLIC INTERESTS 57 & n. 11 (2008).
264. See Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L. J. 1196, 1213 (1977) (suggesting that environmental groups are often more effective at the national level); Carlson, supra note 230, at 1104 ("Observers have suggested that the federal government is less subject to public choice pathologies than many states, which may be dominated by a particular industry group and may lack the strong presence of environmental advocacy groups.").
265. But see Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 HARV. L. REV. 553, 636-41 (2001) (rejecting the position that public choice pathologies are less serious at the federal level).
266. See generally MARTIN SHAPIRO, WHO GUARDS THE GUARDIANS (1988) (describing the reactive nature of administrative law).
267. see also Sunstein, Interest Groups, supra note 9, at 61 (describing how the "hard-look" doctrine has transformed administrative decisionmaking).
268. THE FEDERALIST No. 51, at 291 (James Madison) (Clinton Rossiter ed., 1999).
269. Cf. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 625 (1984) (emphasizing the importance of checks and balances in administrative government).
270. See Adrian Vermeule, Second Opinions and Institutional Design, 97 VA. L. REV. 1435, 1448-67 (2011) (identifying costs and benefits of second opinions in institutional design).
271. See, e.g., Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L. J. 1385, 1386 (1992) (noting that "many observers from across the political spectrum agree⋯ that [ossification] is one of the most serious problems currently facing regulatory agencies").