About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

26 Minn. J.L. Sci. & Tech. 1 (2024-2025)

handle is hein.journals/mipr26 and id is 1 raw text is: Prima Facie Regulatory Capture: Lessons from EPA's Regulation of Glyphosate and PFAS 'Forever Chemicals' Jason MacLean* 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 © 2025 Jason MacLean * For generous reads and insightful comments, I am grateful to Rebecca Bratspies, Elissa Philip Gentry, Katy Kuh, Heather Payne, Margot Pollans, Amber Polk, Landyn Rookard, Erin Ryan, Craig Senn, and Leehi Yona.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most