Trying to Obey the Law

Published date01 May 2000
Date01 May 2000
AuthorVernon R. Hayes
DOI10.1177/00953990022019407
Subject MatterArticles
ADMINISTRATION & SOCIETY / May 2000Hayes / TRYING TO OBEY THE LAW
Federaladvisory committees, a part of government since Washington’spresidency, are gov-
erned under various statutes, including the FederalAdvisory Committee Act (FACA). Since
its 1972 passage, FACA’s ambiguity and various judicial interpretationshave made it diffi-
cultfor agenciesto determineif manygovernment initiativescomply withFACA.The Clinton
administrationhas found thisto bea problemwhile implementingseveral initiatives,includ-
ing health care reform and ecosystem management plans. This article briefly examines
FACAand its judicial interpretations; its potential application to a leading administration
initiative, the Common Sense Initiative; and the problems FACA may pose to other admini-
stration efforts.
TRYING TO OBEY THE LAW
The Federal Advisory
Committee Act, the Courts,
and the Common Sense Initiative
VERNON R. HAYES, JR.
Forest Landowners Association
Since Cleveland’s Cuyahoga Rivercaught fire in 1969, there has been a
considerable effort within the United States to improve the quality of the
environment. From landmark legislation proposed by Senator Edmund
Muskie, to the creation of the Environmental Protection Agency(EPA) by
President Richard Nixon in 1971, federal, state, and local governmental
units have regulated industries that introduce toxins into the environment
(Landy et al., 1994).
The EPA,at the effort’s forefront, operates under 16 major statutes and
the oversight of more than 70 congressional committees and subcommit-
tees (Common Sense Initiative [CSI], 1996d). This agency attempts to
balance the immediate needs of industry against the long-term necessity
of protecting the Earth for future generations. Successful in its many
efforts to reduce the amount of toxins released into the environment,there
have been repeated complaints by business that regulations are too
183
ADMINISTRATION& SOCIETY, Vol.32 No. 2, May 2000 183-218
© 2000 Sage Publications, Inc.
invasive and expensive, whereas environmental groups contend that the
EPA is not doing enough to protect the environment.1These conflicting
views have led to the situation where as manyas 600 lawsuits may be liti-
gated by the EPA at any point in time (CSI, 1996d).
CurrentEPAadministratorCarol Brownerhas initiated aprojectcalled
CSI to find ways to avoid these contentious conflicts, at the same time
improvingthequality ofenvironmental protectionefforts.Thisproject isa
major component of the Clinton administration’s efforts at “reinventing
environmental regulation” under Vice President Al Gore’s National Per-
formanceReview,now knownas the NationalPartnership forReinventing
Government (National Performance Review, 1995). By bringing together
representatives from various interests involved in the regulation process,
the administration believes sweeping changes can be made in the EPA
design and implementation of environmental policy (CSI, 1995).2
According to the National Performance Review (1995), “we havelearned
that better decisions result from a collaborative process with people work-
ing together, than from an adversarial one that pits them against each
other” (p. 1).3
This project is chartered as a federal advisory committee. Advisory
committees, a part of the American governmental regime since George
Washington’s presidency (Petracca, 1986), expended $144 million of
governmentrevenue in1993.4Thesecommittees havebeen avaluabletool
for the government in obtaining “the best technical brains and experience
of all fields of business, industrial or professional endeavor,at little or no
cost” (Aurelia, 1995, p. 91).5Moreover, these entities allow for “interest
group presentation and influence on the policymaking processes of the
national government” (Petracca, 1986, p. 83). All committees operate
undertheterms ofvariousadvisory committeestatutes, including theFed-
eral Advisory Committee Act (FACA), and conflict of interest laws.
These laws were passed in reaction to concerns over abuse of power and
conflicts of interest, and to ensure that advisory committees operate for
the benefit of the government and not private interests (Bybee, 1994;
Faure, 1996).
Over the past 25 years, the federal courts have examined severaladvi-
sory committees, ruling on whether these organizations have operated
within or outside of advisory committee laws. In some cases, courts ruled
that statutes covering advisory committees were violated; in at least two
cases, courts imposed sanctions and penalties, including the invalidation
of committee recommendations, as a result of illegally operated advisory
184 ADMINISTRATION & SOCIETY / May 2000
committees (Alabama-Tombigbee Rivers Coalition v. Department of the
Interior,1994; Association of American Physicians and Surgeons, Inc., v.
HillaryRodhamClinton, 1997).Asthese courtdecisionshave broughtthe
results of advisory committees into question, it has become more impor-
tant for advisory committees and their establishing agencies to follow
congressional mandates. Yet because of the inconsistencies in court rul-
ings and the vagueness of FACA itself, it can be difficult for government
agencies to actually know what these mandates truly mean in theory and
operation.
In many ways, these problems have led to conflicts within the Clinton
administration’s efforts to reinvent government under the National Per-
formance Review (NPR) and its successor, the National Partnership for
Reinventing Government. The administration has consistently stressed
the notion of rule making through negotiation rather than through tradi-
tional, often confrontational methods; at the same time, however, it has
also attempted to reduce government reliance on advisory committees
(Croley, 1996, pp. 113-114). Because of these conflicting goals and the
problems inherent in FACA,some government agencies find it difficult to
form those cooperative partnerships with the private sector that are so
highlyadvocatedby theNPR. This hasled to situationswhere effortswere
undertaken outside of the FACA framework, only to become embroiled in
FACAissues and controversies (Association of American Physicians and
Surgeons, Inc., v. Hillary Rodham Clinton, 1997; Croley, 1996; Seattle
Audubon Society v. Lyons, 1994). This is especially true of ecosystem
management, where FACArulings surrounding the administration’s Fed-
eral Ecosystem Management Advisory Team (FEMAT) have resulted in
“chilling effects” regarding environmental policy (Lynch, 1996, p. 432;
Croley, 1996).
The objective of this article is to briefly review the Federal Advisory
Committee Act and its judicial interpretations, including those regarding
previous management efforts of the Clinton administration, and howthey
could affect one of the administration’s leading attempts at consensus
building and negotiated rule making, CSI. First, it will briefly examine
FACA, the reasons for its passage, and its interpretation by the judiciary
over the past 25 years, including severalrulings affecting Clinton admini-
stration NPR management initiatives. It will then attempt to view CSI
through the lens of FACA,and see if there is a possibility that it could run
afoul of the same problems that have plagued other administration man-
agement efforts. Finally, the article will review different defenses that
Hayes / TRYING TO OBEY THE LAW 185

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