Over the past few days, several civic and environmental organizations have requested that federal departments and agencies pause rulemaking activities in response to the worsening coronavirus (COVID-19) pandemic.
In an open letter to the president on March 20, 2020, nine civic organizations - including the National Governors Association, the National Conference of State Legislatures, and the United States Conference of Mayors – requested an extension of comment periods associated with all rulemakings and other activities regarding which the executive branch had sought comment for “a reasonable period of time.” The authors observed that, at the time of submittal, the comment periods for nearly 700 federal government actions would close before April 20, 2020 and that more than 1000 comment periods would close before June 20, 2020. The request stresses that “[s]tate and local government policymakers’ thoughtful input into proposed federal agency actions is a vital component of our democratic system and provides federal agencies with much-needed perspectives and potential impacts of federal actions” and that “extreme impact on normal working and living conditions will impair the ability of not only state and local officials, but also the general public, issue experts and others to provide [that input].”
In addition, and on behalf of 14 environmental organizations, the National Parks Conservation Association (NPCA), which boasts nearly 1.4 million members dedicated to preserving the nation’s national parks, sent a letter also on March 20, 2020, to the secretary of the Interior and the administrators of both the National Archives and Records Administration (NARA) and the Environmental Protection Agency (EPA) requesting a “formal pause on all open public comment periods on active rulemakings and non-rulemaking notices from the US Department of Interior (DOI) and EPA. The NPCA wrote that “[w]hile the federal government should [pause] comment periods across every federal department or agency, our organizations share a specific and significant interest in issues under the jurisdiction of DOI and EPA . . .[a]s agencies tasked with protecting our nation’s public health, environment, wildlife, natural and cultural resources”.
Finally, on March 23, 2020, the Chesapeake Bay Foundation (CBF), the largest independent conservation organization dedicated to restoring and preserving the Chesapeake Bay, sent a letter to the White House Office of Information and Regulatory Affairs (OIRA) requesting a pause in the comment periods for nonemergency proposals – including pending and proposed new regulations – and to postpone all related hearings until the president lifts the national emergency declared on March 13, 2020, to “ensure all citizens can participate in the federal rulemaking process.”
It is unclear what action, if any, the president might take in light of these and potentially other requests. It is also unclear whether those departments and agencies might choose to take action absent presidential direction to do so, either on a generic or ad hoc basis. The resolution of the underlying legal issues could be complicated and the decision to suspend (or not to suspend) comment periods or the activities related to those comments periods more broadly could form the basis for subsequent legal challenges.
CORONAVIRUS COVID-19 TASK FORCE
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold.