Whether you are a member of the resistance movement or a cheerleader for the new Trump administration's regulatory reform agenda, this Article intends to engage your passion. (Of course, scholars, students, and agency officials should be interested too.) The notice and comment rulemaking process governing the creation of most regulations generated by federal agencies includes an obligation that agencies respond to public comments. This public participation requirement, with its "two-way street" obligation to dialogue, is a critical check on agency power. Anyone interested in regulation and governance, including scholars, lawyers, and the public at large, should better understand the contours of this area of law. This Article provides a critical tutorial for anyone interested in getting involved in regulatory change, whether for or against. Further, it helps one understand why what this Article dubs the "commenting power" is so critical in our democratic republic-it allows ordinary citizens, as much as sophisticated interest groups, opportunities to participate in and have opinions heard on the development of regulations. Noted administrative law scholar Kenneth Culp Davis has described the "notice and comment" rulemaking process as "one of the greatest inventions of modern government." 1 This status is due in no small part to the ability of notice and comment rulemaking to engage the public in the process in a meaningful way. The commenting power given to ordinary individuals is rather extraordinary. When an agency proposes a rule, individuals get a chance to comment, and an agency must respond to significant comments raised during the rulemaking before the rule can become final and effective. This commenting power-vested by the Administrative Procedure Act (APA) 2 in the people, who might be called the "roots" feeding the branches of government-acts as a brilliantly crafted check and balance on

No abstract

No abstract

Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature; (2) judicial land use controls and initial assignments based on inherent rights and obligations arising as intrinsic to the system; (3) private land use controls that can achieve alterations in the initial assignments of rights and obligations through voluntary transfers; and (4) public land use controls, including legislative and regulatory means to force adjustments to initial assignments. The Article posits that players in the land use control game must assess their options in each category and appreciate the ability, and sometimes the necessity, to move between these four categories. Developing an understanding of the system through a conceptual framework this Article calls the “Dynamic Circle of Land Use Controls,” better situates one to see all of the system’s parts and, more importantly, to strategically plan one’s route through the system to achieve a desired result. After explaining the options and the framework, this Article provides two concrete, illustrative examples for applying the framework: dueling neighbors over the right to paint a house pink and competitive resource extractors (owners of coal and coal bed methane) with complex deeds and nearly unresolvable conflicts in developing their assets.

No abstract