Agency Self-Insulation under Presidential Review

By Nou, Jennifer | Harvard Law Review, May 2013 | Go to article overview

Agency Self-Insulation under Presidential Review

Nou, Jennifer, Harvard Law Review

This concept of poorly translated CBA as a self-insulation mechanism builds upon the work of others that have considered CBA as a strategic means of acquiring information about a project's net value, (219) but now broadens the institutional lens to consider how a CBA's form can also facilitate or hinder the review process itself. In doing so, it distinguishes the more well-known incentives for agencies to augment net benefits in order to increase a regulatory action's perceived value, and turns instead to the ways in which a CBA's presentation at the point of submission can impose higher or lower reviewing costs.

3. Timing Strategies. -- In addition to choosing regulatory instruments designed to bypass review and calibrate its scrutiny, agencies can also effectively truncate the time available for review, such that the President will be able to review and reverse fewer decisions either within or across rules. Recall that in response to criticism during previous administrations that "delay was OIRA's tactic of choice for stifling costly new regulations," (220) President Clinton's executive order imposed a ninety-day cap subject to a thirty-day extension on the amount of time available for review, (221) which itself could be extended for "whatever length [the agency] deems appropriate." (222) While the Clinton Administration appears not to have enforced the deadlines vigorously, accounts suggest that they were more strictly enforced beginning with President George W. Bush's OIRA Administrator, who specifically instructed his staff "that no rule will stay longer than 90 days at OMB without my personal authorization." (223)

The best way to understand this initial ninety-day clock is as a timing default rule: a presumption that review should be complete within that period after which there are increased political costs for extending the review. Those costs can be in the form of greater scrutiny from outside interest groups, (224) as well as congressional oversight hearings or letters. (225) As a result, agencies can insulate themselves from political control by attempting to truncate the amount of time effectively available for review. Managing that amount of time reduces the number of issues that can be raised and resolved during the process and thereby increases the pressure for reviewers to prioritize some issues and ignore others that might have otherwise been subject to reversal.

This dynamic is strongest in the context of rules with judicial and statutory deadlines, though it also applies to other internal administration deadlines, such as announcements or high-profile events. Both courts and Congress can impose deadlines on agency action, including ones to commence or complete an action by a specified date. (226) The Hazardous and Solid Waste Amendments of 1984, (227) for example, contained more than sixty statutory deadlines for the issuance of specific regulations regarding the land disposal of hazardous waste. (228) As another example, the Defenders of Wildlife and the National Audubon Society sued the Department of the Interior's Fish and Wildlife Service in 2007, alleging the department's failure to implement an adequate plan governing off-road vehicle use. (229) In April 2008, the plaintiffs agreed to a consent decree, which established a judicial deadline of April 1, 2011, for the final rule. (230) ssWhile agencies are able to comply with only a fraction of these deadlines in practice, (231) such deadlines can nonetheless be powerful motivations for expedited behavior.

A number of courts, in turn, have held that the presidential review process cannot delay the promulgation of regulations subject to such deadlines. (232) In Environmental Defense Fund v. Thomas, (233) for example, the district court ruled that "OMB has no authority to use its regulatory review ... to delay promulgation ... beyond the date of a statutory deadline." (234) Similarly, the D.C. Circuit found an Occupational Safety and Health Administration (OSHA) rule to be lawful despite the fact that OMB still had objections at the time the final rule was issued under a judicial deadline. …

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