Jason MacLean has posted Prima Facie Regulatory Capture: Lessons from EPA's Regulation of Glyphosate and PFAS 'Forever Chemicals' (26 Minn. J.L. Sci. & Tech. 1 (2025)). Here is the abstract:
Based on separate case studies of the Environmental Protection Agency’s regulation of glyphosate-based pesticides and PFAS “forever chemicals” and by utilizing multiple sources of empirical evidence, including previously confidential internal corporate and regulatory documents recently disclosed in U.S. tort litigation and administrative dispute resolution, this paper introduces and elaborates a new dimension of regulatory capture theory, namely prima facie regulatory capture. Where an argument (1) provides a defeasible account of the public interest at stake; (2) shows a shift in policy or regulation away from the public interest toward the special interest of a regulated industry or firm; and (3) establishes information asymmetry, whereby a hypothesis of regulatory capture cannot be definitively proved or disproved without access to information controlled by and only available from industry and/or its regulator, prima facie regulatory capture is established; and (4) the burden of proof— production plus persuasion—shifts to the regulated industry and its regulator to show that the policy or regulatory shift and their associated actions are in fact consistent with the public interest. By attending to the structural evidentiary limits inherent in capture, prima facie regulatory capture responds to the new critics of regulatory capture who assert that capture research tends to employ weak evidentiary standards and that regulators are far less susceptible to capture than capture research suggests. Once established or eliminated as a hypothesis, prima facie regulatory capture can, depending on the forum and the evidentiary purpose for which it is proffered, assume the form of an adjudicative fact, a legislative fact, or otherwise non-adjudicative normative fact across multiple epistemic fora. As such, prima facie regulatory capture has implications for judicial review, tort litigation, law reform, and multistakeholder public-policy and scholarly debates about administrative and corporate accountability.
