chAPTeR eleven • The BuReAucRAcy 265
enforced. During that period, businesses, individuals, and state and local governments can
ask Congress to overturn the regulation. After the sixty-day period has lapsed, the regula-
tion can still be challenged in court by a party having a direct interest in the rule, such as
a company that expects to incur significant costs in complying with it. The company could
argue that the rule misinterprets the applicable law or goes beyond the agency’s statutory
purview. An allegation by the company that the EPA made a mistake in judgment probably
would not be enough to convince the court to throw out the rule. The company instead
would have to demonstrate that the rule itself was “arbitrary and capricious.”controversies. How agencies implement, administer, and enforce legislation has resulted
in controversy. For example, decisions made by agencies charged with administering the
Endangered Species Act have led to protests from farmers, ranchers, and others whose
economic interests have been harmed.
At times, a controversy may arise when an agency refuses to issue regulations to
implement a particular law. When the EPA refused to issue regulations designed to curb
the emission of carbon dioxide and other greenhouse gases, state and local governments,
as well as a number of environmental groups, sued the agency. Those bringing the suit
claimed that the EPA was not fulfilling its obligation to implement the provisions of the
Clean Air Act. Ultimately, the Supreme Court held that the EPA had the authority to—and
should—regulate such gases.^5negotiated Rulemaking
Since the end of World War II in 1945, companies, environmentalists, and other special
interest groups have challenged government regulations in court. In the 1980s, however,
the sheer wastefulness of attempting to regulate through litigation became increasingly
apparent. Today, a growing number of federal agencies encourage businesses and public-
interest groups to become directly involved in drafting regulations. Agencies hope that
such participation may help to prevent later courtroom battles over the regulations.
Congress formally approved such a process, which is called negotiated rulemaking, in
the Negotiated Rulemaking Act of 1990. The act authorizes agencies to allow those who will
be affected by a new rule to participate in the rule-drafting process. If an agency chooses
to engage in negotiated rulemaking, it must publish in the Federal Register the subject and
scope of the rule to be developed, the names of the parties that will be affected significantly
by the rule, and other information. Representatives of the affected groups and other inter-
ested parties then may apply to be members of the negotiating committee. The agency is
represented on the committee, but a neutral third party (not the agency) presides over the
proceedings. Once the committee members have reached agreement on the terms of the
proposed rule, a notice is published in the Federal Register, followed by a period for com-
ments by any person or organization interested in the proposed rule. Negotiated rulemaking
often is conducted under the condition that the participants promise not to challenge in
court the outcome of any agreement to which they were a party.Bureaucrats as Policymakers
Theories of public administration once assumed that bureaucrats do not make policy deci-
sions but only implement the laws and policies promulgated by the president and legisla-
tive bodies. A more realistic view is that the agencies and departments of government play- Massachusetts v. EPA, 549 U.S. 497 (2007).
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