The regulatory process has become more opaque and less accountable. We need to fix that.
Every year, thousands of law students take a course in administrative law. It’s a great course, and we wish even more students took it. But there’s a risk that students may come away with a vision of the regulatory process that is increasingly disconnected with reality. Worse, the leading judicial opinions on the subject suggest that judges may suffer from a similar disconnect.
The Administrative Procedure Act is based on the premise that Congress delegates the power to address a problem to an agency, which then applies the statute to formulate a regulation. Policy is driven by the statute along with the views of the agency head, who is appointed by the President and confirmed by the Senate. But the realities are often different. Policy is often driven, not so much by Congress, as by Presidential orders requiring the use of cost-benefit analysis. The final decision about whether to regulate, and even the details of the regulation, may be decided by a White House office called OIRA. The head of the agency is frequently a temporary appointee, generally a lower level agency official who may not have much clout within the executive branch. The regulatory system as it actually operates is much different from the world envisioned by administrative law.
In a recent paper, Anne Joseph O’Connelland I document this disconnect and discuss its consequences. We think it likely that something like the current system will persist. Administrative law aims to make the regulatory process more open and transparent, more faithful to statutory mandates, and more attentive to scientific expertise - all while respecting the primary role of the executive branch in issuing regulations. To further these goals given current realities, OIRA process must become much more transparent and accountable. Transparency will help ensure that an agency’s statutory mission and its scientific expertise don’t get submerged by OIRA staff who care only about their own policy goals and lack deep expertise. Regardless of whether you share OIRA’s passion for cost-benefit analysis or revile it, we should all be able to agree on the need for improving the process.
This blog is cross-posted on Legal Planet.
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Daniel Farber | March 5, 2014
The regulatory process has become more opaque and less accountable. We need to fix that. Every year, thousands of law students take a course in administrative law. It’s a great course, and we wish even more students took it. But there’s a risk that students may come away with a vision of the regulatory process […]
Catherine O'Neill | March 4, 2014
In recent weeks, celebrations throughout the Pacific Northwest marked the 40th anniversary of the “Boldt decision” – the landmark decision in the tribal treaty rights case, U.S. v. Washington. This decision upheld tribes’ right to take fish and prohibited the state of Washington from thwarting tribal harvest. Judge Boldt’s 1974 decision was intended to close […]
Erin Kesler | February 27, 2014
Today, Center for Progressive Reform analyst Michael Patoka testified at a Maryland Senate Finance Committee Hearing in support of SB 774, which would require construction companies contracting with the state to be prequalified based on their worker health and safety performance measures. The widely supported legislation would ensure unscrupulous employers do not receive contracts funded by taxpayer dollars. In his […]
Frank Ackerman | February 27, 2014
It sounds like a rare piece of good news about climate change: emissions of carbon dioxide, the principal cause of global warming, grew at a slower rate after 2000 in the United States, and have actually dropped since 2007. In Europe the story sounds even better, as overall emissions dropped from 1990 to 2008, often […]
James Goodwin | February 24, 2014
Cue the majestic fanfare, for this week marks House Republicans’ so-called “Stop Government Abuse Week”—you know they mean business, because they have a clever Twitter hashtag and everything. So how does one celebrate such an auspicious occasion? Apparently, by wasting precious House floor time with a series of votes on several extreme anti-regulatory bills that, […]
Rena Steinzor | February 20, 2014
Yesterday, we wrote about OIRA’s role in delaying and diluting the EPA’s long-awaited coal ash rule, in part by introducing and promoting a weak option that would rely on voluntary state implementation and citizen suits, instead of nationwide requirements and federal oversight, to protect the public from dangerous leaks and spills. Anyone who thinks the […]
Sandra Zellmer | February 20, 2014
A Lancaster County District Court has struck down the governor’s decision to approve Keystone XL’s pipeline route through the state in Thompson v. Heineman, CI 12-2060 (Feb. 19, 2014). As described in a previous blog, LB 1161 was passed in 2012 to give Governor Dave Heineman the authority to approve the route rather than having […]
Rena Steinzor | February 19, 2014
Two and a half weeks ago, a Duke Energy ash pond in North Carolina spilled up to 39,000 tons of coal ash and 27 million gallons of contaminated water after a stormwater pipe underneath the pond broke. The spill coated the bottom of the Dan River for 70 miles with gray sludge—five feet thick in […]
William Funk | February 17, 2014
In his State of the Union Address President Obama announced that, while he intended to work with Congress to achieve various goals, he will act unilaterally, invoking his “executive authority,” pending congressional action. There followed a laundry list of initiatives that he said he would take on his own. Predictably, Republicans have railed against the […]