Regulatory Improvement Legislation: Risk Assessment, Cost-Benefit Analysis, and Judicial Review

By Anderson, Fred; Chirba-Martin, Mary Ann et al. | Duke Environmental Law & Policy Forum, Fall 2000 | Go to article overview

Regulatory Improvement Legislation: Risk Assessment, Cost-Benefit Analysis, and Judicial Review


Anderson, Fred, Chirba-Martin, Mary Ann, Elliott, E. Donald, Farina, Cynthia, Gellhorn, Ernest, Graham, John D., Gray, C. Boyden, Holmstead, Jeffrey, Levin, Ronald M., Noah, Lars, Rhyne, Katherine, Wiener, Jonathan Baert, Duke Environmental Law & Policy Forum


I. INTRODUCTION

As the number, cost, and complexity of federal regulations have grown over the past twenty years, there has been growing interest in the use of analytic tools such as risk assessment and cost-benefit analysis to improve the regulatory process.(13) The application of these tools to public health, safety, and environmental problems has become commonplace in the peer-reviewed scientific and medical literatures. Recent studies prepared by Resources for the Future, the American Enterprise Institute, the Brookings Institution, and the Harvard Center for Risk Analysis have demonstrated how formal analyses can and often do help government agencies achieve more protection against hazards at less cost than would otherwise occur.(14) Although analytic tools hold great promise, their use by federal agencies is neither consistent nor rigorous.

The 103rd, 104th, 105th and 106th Congresses demonstrated sustained interest in the passage of comprehensive legislation governing the employment of these tools in the federal regulatory process. While legislative proposals on this issue have attracted significant bipartisan interest, and recent amendments to particular enabling statutes have incorporated some of these analytical requirements, no comprehensive legislation has been enacted into law since passage of the Administrative Procedure Act in 1946.

The inability to pass such legislation has been attributed to a variety of factors, but a common substantive concern has been uncertainty and controversy about how such legislation should address judicial review issues. For example, the judicial review portion of The Regulatory Improvement Act (S. 981), the 105th Congress's major legislative initiative, was criticized simultaneously as meaningless (for allegedly offering too few opportunities for petitioners to challenge poorly reasoned agency rules) and dangerous (as supposedly enabling petitioners to paralyze even well-reasoned agency rules).(15) Thus, a significant obstacle to regulatory improvement legislation appears to be the conflicting opinions among legal scholars and practitioners about how judicial review issues should be addressed in such legislation.

The Clinton Administration and the authors of S. 981 believe they have crafted a workable compromise, one that accommodates the need to bring more rigor and transparency to an agency's decisional processes without imposing excessive judicial review. Nevertheless, it is clear that their agreement on this subject, if included in future legislative deliberations, will be scrutinized and contested.

Recognizing the importance of the judicial review issue to this and, indeed, any effort to improve the regulatory process, the Center for Risk Analysis at the Harvard School of Public Health convened an invitational Workshop of accomplished legal practitioners and scholars to discuss how judicial review should be handled in legislation of this kind. The full-day Workshop was conducted in Washington, D.C. on December 17, 1998. Its purpose was to discuss principles, experiences, and insights that might inform future public debate about how judicial review should be addressed in legislative proposals that entail use of risk assessment and/or cost-benefit analysis in agency decision-making (whether the proposals are comprehensive or agency-specific).

In order to provide the Workshop a practical focus, participants analyzed the provisions of S. 981 (as modified at the request of the Clinton Administration). An exchange of letters between S. 981's chief sponsors and the Clinton Administration defining the terms of the agreement was examined as well. This Report highlights the themes of the Workshop discussion and offers some specific commentary on how proposed legislation (including but not limited to S. 981) could be improved in future legislative deliberations.

II. BACKGROUND

This section provides some background in the form of a brief description of (a) cost-benefit analysis and risk assessment, followed by an overview of prior (b) executive and (c) legislative efforts to incorporate these tools into the regulatory process. …

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