Attorneys. Richard Heart is here to help. Regulatory agencies must

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Attorneys. Richard Heart is here to help. Regulatory agencies must

consider all relevant comments. “Consider” means more than you might think. They must explain, in writing, what they relied on, a reasoned basis for such, and they must not have failed to consider any important aspect. If they don’t, they can be found “arbitrary and capricious” by the courts and their rules undone. Substantive, relevant comments lead to better rules, or no new rules, as it mandates regulators do a better job. Basically, if you make a relevant, substantive comment, and they don’t respond to it, it can invalidate the rule they made.

Now that AI exists, it’s easier than ever to verify your comments are relevant and substantive.

Furthermore, the courts might find that the agency didn’t provide you with good enough reasoning in their proposed rule for you to even make reasonable comments about, which is a different type of APA violation. Basically, the APA has lots of rules the agencies must follow, to the letter, or risk being overturned in court. Smart lawyers are referencing those rules in some of their comments. I’ve heard that by making more obvious the deficiencies in the agency’s notices, that if they make a bad rule final, that it might be easier in court to have it overturned. As you can show the judge what they ignored, what they violated, what they didn’t reason about properly, what they failed to disclose, etc. Then it’s easier for the judge to rule against them, as the agencies violations are made more obvious. Here’s an example of such a comment: https://subscriber.politicopro.com/f/?id=0000018a-8982-d776-a3ce-eff31e170000

I’m not an attorney, but I’ve been told I’d make a good one.

Citations:
Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983).

Section 553 of the APA (5 U.S.C. § 553):

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24.09.2023

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Attorneys. Richard Heart is here to help. Regulatory agencies must

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