House of Delegates Approves Risk-Assessment and Plain-Language Resolutions

The House of Delegates, acting at the Annual Meeting of the American Bar Association, voted on August 10, 1999, to approve two resolutions sponsored by the Section of Administrative Law and Regulatory Practice, one concerning federal agency risk assessments and one concerning the use of plain language in federal regulations. The House also approved two resolutions co-sponsored by this section, one concerning government lawyer participation in the ABA and one concerning State brownfields program immunity.

Risk Assessment Resolution.

This resolution recommends that any formal requirement, promulgated by the Congress (in legislation), the President (in executive orders), or an agency head (in directives or rules), that agencies of the Federal Government undertake formal risk assessments in advance of regulatory action concerning health and safety issues should be consistent with certain principles regarding: estimates and characterizations of the nature and magnitude of risks; the need for flexibility in assessing risks; use of judgment; peer review; limitations of methodology, data, assumptions, uncertainty and variability; risk comparisons; participation by interested persons and groups; when risk assessment should be required; and judicial review.

This resolution allows the ABA to take a position on the role of risk assessment in agency decisionmaking. Legislation under consideration in Congress would require agencies to make more extensive use of risk assessment and to follow certain guidelines in conducting risk assessments. The resolution does not replace substantive standards contained in the numerous statutes to which the risk assessment requirement would apply; rather, it allows the ABA to participate in shaping the debate on this issue.

Plain Language Resolution.

On June 1, 1998, the President issued an Executive Memorandum directing that Federal agencies use plain language in their documents. The President undertook this initiative in an effort to make the Federal government more responsive, accessible, and understandable in its communications with the public. The resolution proposed by this section and adopted by the House acknowledges that plain language is a means of effective communication to promote understanding of legal obligations and articulates the ABA=s support for the use of plain language in writing regulations while noting that agencies should observe a number of cautions in the process.

The resolution recommends that agencies use plain language in writing regulations, as a means of promoting the understanding of legal obligations. The resolution recommends agencies use such techniques as: organizing regulations for the convenience of the reader; using direct, easily understood language; writing short sentences in the active voice; and using stylistic devices such as tables and question-and-answer format. The resolution cautions agencies to take into account possible judicial interpretations, clearly state the obligations and rights of persons affected, as well as those of the agency, and identify and explain all intended changes when revising regulations.

Government Lawyer Resolution.

This resolution encourages governmental entities at all levels to permit government lawyers, including those in administrative judicial positions, to serve in leadership capacities within professional associations and societies and, further, encourages governmental entities to adopt standards that would authorize government lawyers, including those in administrative judicial positions, to (i) make reasonable use of government law office and library resources and facilities for professional development, continuing education and justice system improvement activities, including pro bono representation, sponsored or conducted by bar associations and similar legal organizations; and (ii) utilize reasonable amounts of official time for participation in such activities.

The House adopted a resolution in 1998 stating the ABA=s belief that it is in the government=s and the legal profession=s interest for government lawyers to participate ion professional development and justice system improvement activities sponsored by bar associations and urged governmental entities to take steps to facilitate such participation. The current resolution makes clear that the ABA is interested in the welfare of government lawyers and is interested in removing impediments to their full participation in bar association activities.

Brownfields Immunity Resolution.

This resolution supports enactment of legislation providing immunity from federal liability when a property affected by contamination is being managed pursuant to a State brownfields program that: imposes cleanup standards protective of human health and the environment; ensures appropriate public notice and participation; and provides financial and personnel resources necessary to carry out the program.

EPA defines a brownfield as a site where concerns over actual or perceived environmental contamination complicate the potential for redevelopment or reuse of the property. The threat of liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) is a disincentive to voluntary remediation. The resolution is intended to assist in the reduction of unnecessary litigation and in the economic revitalization of areas blighted by unused or underutilized brownfields. It is consistent with an earlier resolution adopted by the ABA advocating changes to CERCLA that have not been enacted.

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