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A great deal of skepticism toward administrative agencies stems from the widespread perception that they excessively or even exclusively cater to business interests. From the political right comes the accusation that business interests use regulation to erect barriers to entry that protect profits and stifle competition. From the political left comes the claim that business interests use secretive interactions with agencies to erode and negate beneficial regulatory programs. Regulatory “capture” theory elevates many of these claims to the status of economic law. Despite growing skepticism about capture theory in academic circles, empirical studies of business influence and capture return ambiguous results, and they have failed to analyze fully the critical agenda-setting stage of the regulatory process (where business influence is likely to be especially pronounced), leaving capture theory standing as a plausible description of regulatory policymaking.

In this Article, I take a close look at business influence in the agenda-setting stage of the rulemaking process. Using original data on all the rulemaking petitions submitted to three administrative agencies from 2000 to 2016, I trace how, when, and why agencies respond, giving attention to the agencies’ responsiveness to the type of petitioner and the character of the requests. Although business interests may participate at a higher rate than public interest groups and individuals, analysis of the factors that drive agency decision making about which petitions to accept suggests a distinct lack of any business advantage. Even in a venue where it would be exceedingly easy to give business interests precisely what they want, agencies remain largely unmoved and evenhanded. The pattern that does emerge—an agency preference for using petitions to inform incremental revision of existing regulations to reflect changed circumstances or new technologies—probably does inure mostly to the benefit of regulated entities, but it is difficult to square with theories of excessive influence or capture of the regulatory process by business interests. These findings strongly suggest that agencies are able to maintain critical distance from business in making important decisions about the scope of the regulatory agenda and, by extension, the content of regulatory law.

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Harvard Environmental Law Review, Vol. 43, Spring 2019, forthcoming.