By Paul R. Verkuil and Reeve T. Bull
On November 19–20, 2014, Administrative Conference Chairman Paul Verkuil and Attorney Advisor Reeve Bull participated in a workshop hosted by the George Washington University Regulatory Studies Center comparing the U.S. and EU regulatory systems and highlighting potential reforms for consideration in the negotiations for the Transatlantic Trade and Investment Partnership ("TTIP"). Chairman Verkuil’s panel focused on the role of legislatures and courts in regulatory policymaking in the U.S. and EU, and Mr. Bull’s panel addressed stakeholder consultation in each system. Other panels examined regulatory impact assessment, past U.S.-EU coordination efforts, and risk assessment and risk management.
As Chairman Verkuil highlighted in his remarks, the Administrative Conference has been and remains a strong proponent of international regulatory cooperation. Indeed, the Conference was one of the first government agencies to recognize the benefits that flow from close coordination between U.S. agency officials and their foreign counterparts, which it highlighted in the early 1990's in Recommendation 91-1. Shortly after reopening its doors in 2010, the Conference decided to revisit the international regulatory cooperation issue. In late 2011, the Conference issued Recommendation 2011-6, which builds upon the proposals of Recommendation 91-1 and urges agencies to identify opportunities for eliminating unnecessary trade barriers. In 2012, OIRA Administrator Cass Sunstein announced Executive Order ("EO") 13,609 at an event co-hosted by the Conference; EO 13,609 was partly inspired by ACUS Recommendation 2011-6 and adopts many of its proposals. Since that time, the ACUS staff has been closely involved in promoting international regulatory cooperation, meeting with numerous U.S. and EU officials as well as regulators from the UK, Netherlands, and Belgium (see, e.g., ACUS’s comment to the EU Ombudsman on the structure of expert advisory groups).
In light of ACUS's involvement with international regulatory cooperation, we greatly appreciated the opportunity to share insights with and learn from our U.S. and EU colleagues in the workshop. In Chairman Verkuil's panel, George Washington University Law Professor (and ACUS Public Member) Richard Pierce and Tilburg University Professor Anne Meuwese discussed a number of intriguing topics connected with legislatures' and courts' respective roles in regulatory policymaking, focusing especially on the importance of judicial review. Among other things, Professor Meuwese discussed proposals for expanding the scope of judicial review in the EU. Professor Pierce expressed some concern with any efforts to extend judicial review, contending that pre-enforcement review in the U.S. has led to excessive "ossification" of regulatory policymaking.
The exchange between Professors Pierce and Meuwese highlights a salient issue that may complicate TTIP negotiations: the U.S. and EU have essentially chosen a different balance between the competing goals of regulatory accountability and expeditious policymaking. Though EU policymakers are capable of acting with greater dispatch, given the reduced probability of having to justify their conclusions in court, they are arguably less accountable to stakeholders (who may have a diminished incentive to participate in the regulatory process absent any mechanism for challenging the result). Of course, liberalizing standing doctrine in the EU may not necessarily result in American levels of regulatory ossification, given the less litigious nature of EU industry and civil society. Nevertheless, the TTIP might explore mechanisms of promoting enhanced accountability short of full judicial review, such as urging the Commission to provide responses to germane comments submitted by stakeholders (as U.S. agencies do in the preamble to a final rule).
Mr. Bull's panel focused on the role of stakeholders in regulatory policymaking. Panelists included representatives from the U.S. and EU governments (Elizabeth Golberg of the European Commission and Alex Hunt of OIRA), industry associations (Lena Perenius of the European Chemical Industry Council and Greg Skelton of the American Chemistry Council), and civil society (Anna Fielder of the Transatlantic Consumer Dialogue and Susan Grant of the Consumer Federation of America). As the panel explored, both the U.S. and EU seek to achieve a number of goals in soliciting stakeholder input: leveraging outside information to which the government might not have access, promoting stakeholder buy-in, and achieving democratic legitimacy by involving the public in the policymaking enterprise.
Notwithstanding their similar overarching goals, the U.S. and EU often take different approaches to advancing these policies. For instance, the European Commission seeks outside input very early in the policymaking process (at the equivalent of the U.S. legislative stage), which allows stakeholders to play a significant role in shaping the proposal, whereas U.S. regulators typically solicit public comment only after issuing a proposed rule, which allows stakeholders to comment on a concrete proposal. Both approaches have certain advantages, and the EU and U.S. might learn from one another's systems when contemplating reforms in the TTIP. For instance, U.S. agencies might make greater use of pre-NPRM input mechanisms (e.g., ANPRMs), and the European Commission might solicit stakeholder input once a draft regulation, directive, delegated act, or implementing measure has been prepared (in addition to doing so at the pre-drafting stage).
Though these proposals represent but a few modest ideas for reform, ongoing dialogue between U.S. and EU regulators will continue to identify commonalities and opportunities for enhanced regulatory convergence. As ACUS Senior Fellow Neil Eisnernoted in his remarks, TTIP should be seen merely as a starting point: as U.S. and EU regulatory officials continue to interact and learn one another's systems, opportunities for enhanced cooperation and reform should emerge organically and should go well beyond whatever is ultimately included in the agreement itself. The GW Regulatory Studies Center has greatly contributed to this ongoing discussion by hosting this forum, and we wish to extend our heartfelt thanks to Professor Susan Dudley and other members of the RSC team for the opportunity to participate in this important dialogue.
* Paul R. Verkuil is the Chairman of the Administrative Conference of the United States. Reeve T. Bull is an Attorney Advisor with the Administrative Conference. The views expressed in this post are those of the authors and do not necessarily represent those of the Administrative Conference.
This essay is based on remarks made at the George Washington University Regulatory Studies Center's conference, Enhancing the Transatlantic Trade and Investment Partnership: Reducing Regulatory Barriers. It reflects the views of the authors and does not represent an official position of the GW Regulatory Studies Center or the George Washington University.