Our loyal opposition at the Center for Regulatory Effectiveness has engaged in some very creative reading of legal opinions in order to breathe new life into a discredited anti-regulatory tool of the George W. Bush era: the Information Quality Act. This pesky little statute instructs the Office of Management and Budget to “provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal Agencies.”
Enacted as an appropriations rider in 2001, the seemingly innocuous restatement of the goal that the government should always strive to be accurate was the brainchild of Jim Tozzi, a former Reagan Administration OMB official, who has since used it to force internal reviews of EPA pesticide and sewage sludge regulations, among other items. Tozzi’s colleague William Kovacs of the Chamber of Commerce pronounced the statute “the biggest sleeper there is in the regulatory area,” predicting that it “will have an impact so far beyond anything people can imagine.” (For more, see an excellent 2004 analysis of these efforts by Washington Post reporter Rick Weiss and CPR’s 2006 white paper on the subject.)
In 2006, thankfully, a panel of conservative Fourth Circuit Court of Appeals judges deflated the high hopes of IQA proponents, in a case in which the Salt Institute (a trade association for the salt industry) and the Chamber of Commerce sought to use the statute to block federal action on the grounds that the information on which it was based was insufficiently vetted. The court showed them the door, declaring unambiguously: “By its terms, this statute creates no legal rights in any third parties. Instead, it orders the Office of Management and Budget to draft guidelines concerning information quality and specifies what those guidelines should contain. Because the statute upon which appellants rely does not create a legal right to access to information or to correctness, appellants have not alleged an invasion of a legal right ….” The plaintiffs had sought to use the statute to compel the federal National Heart, Lung, and Blood Institute to stop advising Americans that curbing their consumption of salt could lower their blood pressure. The three-judge panel probably saw some distasteful handwriting on the wall: open the courts to this kind of quibbling and their dockets would be overrun by arcane disputes over data large and small.
And, of course, many of my CPR colleagues and I were worried that, had the plaintiffs won the right to drag agencies off to court, industries angry about anything the federal government did or said and unable to get relief through normal—and fairly elaborate—decisionmaking procedures could threaten nuisance litigation as a deterrent for similarly rash “inaccuracies.”
The Fourth Circuit ruling infuriated the Chamber of Commerce, which pledged to ask Congress to amend the Paperwork Reduction Act, the Information Quality Act’s mother statute, to guarantee judicial review. The presidential election and Democratic control of both houses largely put an end to these plans and regulatory interest groups moved on to other issues.
But in late March 2010, the D.C. Circuit Court of Appeals handed down an arcane decision dealing with assessments on tobacco producers entitled Prime Time International Company v. Department of Agriculture. Prime Time, a manufacturer of small cigars, was seeking to lower payments due under the Fair and Equitable Tobacco Reform Act, which repealed a system of quotas and price supports for tobacco production and instead provided for payments by producers for a ten-year period. As an afterthought, the court addressed Prime Time’s claim that it was entitled to disclosure and correction of data involved in the case under the Information Quality Act. Dealing only with the issue of whether the information statute covers disputes between individual companies and the government, commonly known as “adjudicative proceedings,” the D.C. Circuit panel dismissed these claims, concluding that the statute explicitly excluded such matters from the scope of the advice OMB was instructed to give to federal agencies. Over at Center for Regulatory Effectiveness headquarters, though, this oblique rejection of the company’s claim was heralded as a great victory: “Therefore if you connect the dots, the fact that the Court opined that OMB’s regulations are legally binding with the Court’s link of this finding to Mead, you readily conclude that the [IQA] is judicially reviewable.” (U.S. v. Mead is a 2001 Supreme Court case holding—not for the first time—that certain types of federal regulatory decision have the force of law with respect to those whose conduct is covered by their provisions.)
Now, I’m as into connecting dots as our loyal opposition over at CRE. But what any fair reading of the two cases reveals is, first, a huge boulder —the 4th Circuit opinion holding affirmatively that the IQA does not provide for judicial review—and second, a tiny pebble—the D.C. Circuit opinion throwing the company seeking relief under its provisions out of court because the statute does not apply to its circumstances. As any law professor (and I am one, so I’d know!) would instruct her students, the boulder dwarfs the pebble, however much one might wish to imagine a beeline between them.