Robert Glicksman Testifies at House Hearing on Agency Rulemaking Process

by Ben Somberg

March 29, 2011

CPR Member Scholar Robert Glicksman testifies at a hearing this afternoon on "Raising the Agencies' Grades – Protecting the Economy, Assuring Regulatory Quality and Improving Assessments of Regulatory Need." The hearing will be held by the Courts, Commercial and Administrate Law subcommittee of the House Judiciary Committee.

The hearing will feature two witnesses from the Mercatus Center, who will argue that federal agencies produce flawed regulations, and need to engage in more rigorous regulatory analysis to provide better justifications of the need for and content of regulations.

This misses the reality, Glicksman argues in his testimony:

while the current regulatory process is indeed flawed, the problems for the most part are not the result of agencies adopting regulations without justification or regulations whose social costs exceed their benefits.   Instead, the primary problem is regulatory dysfunction resulting from providing agencies with inadequate resources to fulfill their statutory responsibilities, not giving agencies sufficient tools to address significant health, safety, and environmental risks, and burdening agencies with what are already excessive and unhelpful analytical obligations.

Says Glicksman:

Although there is no evidence to support the charge that agencies routinely churn out ill-advised and counterproductive proposals, current law provides ample opportunities to fix those problems without heaping on agencies already stretched to the limit more onerous analytical responsibilities. A regulatory proposal is just that—a proposal. It reflects the best efforts of an agency to devise a regulatory solution to some environmental, health, or safety threat that is supported by applicable law and available science. The solution is the result of a broad inquiry into the nature of the threat and the available remedial options that is conducted by an interdisciplinary group of agency experts and policymakers.

Despite these best efforts, sometimes an agency overlooks some crucial issue when developing a rule. This is why, under traditional Administrative Procedure Act (APA) rulemaking, a regulatory proposal is meant to start the discussion, not end it. Indeed, the agency must solicit and actually consider comments it receives from the public on the proposal. If the agency discovers during the comment process that it has strayed beyond its statutory authority, neglected relevant considerations, or misunderstood the science on which it based its proposal, the APA requires the agency to revise the rule accordingly before finalizing it, or not adopt the rule at all. This is not some hollow exercise. Rather, it is strictly enforced by federal courts whenever those affected by a final rule challenge it in court. If the reviewing court finds that an agency ignored some relevant public comment without adequate explanation, it can vacate the rule and send the agency back to the drawing board. This prospect creates strong incentives for agencies to diligently consider all relevant information during development of the rule.

In essence, efforts to reform regulatory analysis through enhanced cost-benefit analysis ignore this well-calibrated process.   Instead, these efforts would require agencies to embark on a time-consuming, resource-intensive, and ultimately fruitless search to uncover every impact that a rule might have at the very beginning of the rulemaking process. This will not improve regulatory decision-making. At best, it wastes agencies time and resources. At worst, it stops the whole rulemaking process dead in its tracks.


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