Friday, January 5th, 2024
My law professor once said that administrative law is “electrical engineering for lawyers.” I did not fully appreciate what this meant, other than that it sounded complicated. That was until I had the opportunity to spend years watching the regulatory and appellate process up-close.
I had the honor and privilege of coordinating review of Virginia’s regulatory process on behalf of the Virginia Governor. As Deputy Counsel and then Counsel to Governor Terry McAuliffe, I reviewed more regulations than, I suspect, most any other lawyer in the state. More importantly, I saw the process work and not work. And I watched how appeals progressed to the Supreme Court of Virginia through judicial review of agency action.
From this experience, I understand more how administrative law parallels the intricacies of electrical engineering. There are so many factors at play, all of which must align, for things to work—law, policy, politics, science, data, and the inexorable ticking of the clock. This article attempts to provide some lessons learned from that experience.
Lesson One: The Process is a Gauntlet, so Know Your Goal Up Front
Whether your regulatory issue involves a general regulation or a case-specific decision (such as obtaining a permit or license or other regulatory approval), they both share important similarities. The Virginia Administrative Process Act (“VAPA” at Va. Code § 2.2-4000, et seq.) defines separately procedures for rulemaking and case decisions, with strict procedures for adopting regulations, making case decisions, and judicial review.
Because agencies act only under statutory authority, they have to follow those rules. So the process matters immensely. Thus, know what you want from the beginning.
For instance, say you want to stop a regulatory change at all costs. That means you want to make the process harder for the agency. If the agency messes up along the way, and even if you lose before the agency, you might win an appeal of the decision, and as discussed below, time is your friend.
If, on the other hand, you need the agency to grant a license or permit, then your fate is not only in convincing the agency, but also having that decision survive appeals and judicial review. Time is your enemy, and so you want to be a helping hand to get things wrapped up quickly and effectively.
Lesson Two: Many Calendars and Actors Impact Timing of Regulatory Process
The process for enacting or amending a regulation is defined by statute, and it takes time—but that statutory calendar is not the only one at play.
On paper, the Virginia regulatory process goes through three phases—the Notice of Intended Regulatory Action (“NOIRA”), the Proposed phase, and the Final phase. Public comment periods are required between each phase, with a 30-day period before a Final regulation becomes effective after it is published in the Virginia Register of Regulations. Thus, in general, the process cannot be faster than 120-180 days. But it never goes that fast, and the timeline is far more complicated and impacted by multiple different actors:
- Executive Branch Review Calendar — This process is layered atop the statutory process by Governors’ Executive Orders. Every modern Governor has imposed some review process (partially required also under VAPA) through which the Attorney General, the Department of Planning and Budget, the Cabinet Secretary, and the Governor all review regulations as they advance through the regulatory process. This process has few enforceable deadlines, so it can become a regulatory purgatory.
- Legislative Calendar – The General Assembly session occupies an immense amount of agencies’ time. So in the month before and during the legislative session (say December to April), good luck getting any agency to do anything.
- Board’s Calendar – If the regulatory action is controlled by a Board (and not a full-time agency head), then that Board’s calendar becomes relevant. Most regulatory boards do not meet every day or even week. They might meet every month or perhaps even less frequently. So, if your action misses March’s meeting, it might be another month or more before action can be taken.
Accordingly, the Virginia Registrar estimates that actions generally take between 18 and 24 months. Even when the action is a high priority for the Virginia Governor (and thus the Executive Branch), it will take around one year. For instance, Governor Youngkin made exiting the Regional Greenhouse Gas Initiative a high priority. That regulatory action, through the State Air Pollution Control Board, took just under one year from the publication of the NOIRA to it becoming finally effective.
But of course, the regulatory process is not “over” at the Final stage. There is the calendar for appeals and judicial review of regulatory action, if a stakeholder pursues it. That can take years to wind through the Circuit Court, the Court of Appeals of Virginia, and the Supreme Court of Virginia.
Lesson Three: The Passage of Time is Not Neutral
A related lesson is that timing is not neutral. Since the regulatory process occurs within a dynamic political system, delay tends to favor the status quo. Thus, generally speaking, proponents of a regulatory action need to get things done ASAP; opponents (a/k/a proponents of the status quo) generally benefit from time.
The reason returns us to my law professor: the regulatory process requires alignment, just like an electrical circuit. And, over time, something will undoubtedly change that could mean the required alignment no longer exists. For instance, there may be a new Governor with a different policy view (which is guaranteed every four years under the Virginia Constitution). There may be a new General Assembly, with different priorities (possible every two years). The underlying policy issues (or public perception of them) may shift in one direction or another. Once the regulatory “circuits” are no longer aligned, the regulatory process stalls, and the status quo is maintained.
Accordingly, proponents of a particular regulatory action—particularly if it is politically contentious—have a limited window, which makes perfecting the regulatory process all the more important.
Lesson Four: Proponents Should Help the Agency Get it Right; Opponents Should Make it Harder
Because of this “alignment” dynamic, and pulling together Lessons 1-3, there are certain takeaways for stakeholders. Let’s accept that a given regulatory process takes 1.5-2 years, and, let’s assume that judicial review will take 2-3 years. Thus, generally speaking, if an agency action fails to pass judicial review, there will almost certainly be a new Governor, with a new administration, before the agency can reconsider the issue. So the “alignment” is fleeting.
Thus, proponents should see their fate as tied to the agency getting it right the first time. Under administrative law, agencies generally get deference from the appellate courts; however, errors in the process or in considering the issues can be fatal. Thus, to win an appeal, proponents need to act as allies to the agency—help it get things right and be vigilant:
- Do not let errors fester—if the agency didn’t do something right, advocate for getting it right then, rather than waiting for judicial review to set things back years after the fact.
- Be engaged and provide evidentiary support for the regulatory action.
The same lessons teach opponents to make things harder. And, here, opponents need to be equally vigilant:
- Demand more process to draw things out—delay is your friend.
- Submit contrary evidence on the record—and know that substantive evidence (such as studies, data, etc) is going to be much harder for the agency to get around than generic opposition from public comments.
Lesson Five: Mind the State Budget
The State Budget, adopted every two years and amended every other year, is always the most important piece of legislation passed by the General Assembly. But it is not just about money. A lot, and I mean a lot, of policy is made through the State Budget.
Thus, stakeholders should pay attention to budget language—both as it is being considered and implemented. The General Assembly, ultimately, is the chief policymaker in Virginia, and it has an enormous ability to attach conditions to the appropriations it makes. And that conditioning power is often used to direct or restrict regulatory action by the Executive Branch.
That can be a total game-changer—so just be aware of how legislative changes, even arcane ones in the State Budget, could impact the regulatory process in ways helpful or hurtful to your cause.
The regulatory process is a dynamic one that operates alongside political and judicial processes. It is, in many ways, electrical engineering for lawyers, but it also is a human process. So, in the end, participation is key—and quality matters more than quantity. That said, when the stakes are high in a regulatory action, I hope some of these lessons-learned from the inside will be helpful in successfully navigating the process. If you have any questions or need guiadance on Virginia regulatory proccesses or appeals, contact us today.