Reading list: consumer protection and the industries who regularly sue their regulators

Nicholas R. Parrillo, Administrative Law as a Choice of Business Strategy: Comparing the Industries Who Have Routinely Sued Their Regulators with the Industries Who Rarely Have

George Washington Law Review, Vol. 93, No. 5, pp. 1031-1195 (2025) 

Abstract:

For some large and powerful industries, it has long been normal and even routine for businesses to sue their federal regulator. For other large and powerful industries, it has been rare for the last twenty-five to forty years or more. This variation is enormous yet almost entirely unknown to the literature on administrative law.

This Article documents and analyzes this variation in one type of federal regulation: public health and safety. For every major federal health-and-safety regulator, I search dockets to identify every judicial challenge to the agency’s actions brought by the agency’s principal regulated industry—whether by individual companies therein or by trade associations—during the period from 2013 to 2021 and, for several of the agency-industry pairings, for additional time periods extending as far back as the 1980s and as recent as 2024. The pairings covered are the following: the Food Safety and Inspection Service at the U.S. Department of Agriculture and meat and poultry processors; the Food and Drug Administration and drugmakers; the National Highway Traffic Safety Administration and automakers; the Federal Aviation Administration and airlines; the Consumer Product Safety Commission and children’s product companies; the Nuclear Regulatory Commission and nuclear plant operators; the Occupational Safety and Health Administration and employers generally; the Mine Safety and Health Administration and coal mines; the Environmental Protection Agency and power companies; the Federal Motor Carrier Safety Administration and for-hire trucking companies; and the Centers for Medicare and Medicaid Services and hospitals and nursing homes. For each pairing, I use the data on judicial challenges as the starting point for a qualitative discussion of how big or small a role litigation plays in agency-industry interaction.

I find that industry judicial challenges tend to be few and marginal when two conditions are met. The first condition is that companies in the industry have a thick relationship with the regulator—that is, each company knows the regulator will be making repeat decisions impacting its business into the indefinite future, so each company has a stake in winning the agency’s trust and goodwill. The second condition is that, with regard to the agency action at issue, industry economic interests are aligned with the mission of the regulator. This is especially the case for agency action that has the official purpose of protecting the health and safety of the industry’s own consumers, as opposed to protecting industry workers or victims of externalities of industry conduct. In protection of consumer health and safety, the industry and the regulator are more likely to view each other as on the “same team,” and industry tends to (1) see the regulator as a source of credible guarantees that help attract business, (2) fear the “bad look” with consumers that conflict with the regulator could cause, and (3) seek influence and leverage over the agency by less open and adversary means than litigation.