In advance of nomination hearings for OIRA administrator appointee, Howard Shelanski, Policy Integrity sent a one-pager to members of Congress to give them a framework for addressing delays that sometimes occur in the regulatory review process.
The framework attempts to balance the need for thorough, centralized review of regulation, against the very real costs of undue regulatory delays and sets out a few simple steps that could help OIRA reduce its backlog of delayed reviews, prevent future unjustified delays, and explain unavoidable delays to the public.
The one-pager went to members of the Homeland Security and Governmental Affairs Committee as well as other members who have expressed interest in regulatory review issues.
Issue(s): Cost-Benefit Analysis
The U.S. Court of Appeals for the Sixth Circuit, citing Richard Revesz’s work with co-author Jonathan Nash on “grandfathering” power plants, recently reversed a district court order and sided with the EPA in its case against DTE Energy Corp. The court ruled that the Clean Air Act grants the EPA the power to review projections of future emissions resulting from a facility modification without having to wait for data from the completed project.
Although the court ruled in the EPA’s favor, it took issue with the agency’s argument that New Source Review is a program designed to force every source to eventually adopt modern emissions control technology. Judges John Rogers and Martha Craig Daughtrey cited Revesz’s Northwestern University Law Journal article on grandfathering in the majority opinion, stating that current regulations actually allow plants to “replace parts indefinitely without losing their grandfathered status so long as none of those changes cause an emissions increase.”
The case and the court’s decision bring to light the contradictory nature of the EPA’s new source regulations and the ways in which they can distort the economic considerations that companies face when deciding whether to construct new plants or invest in cleaner technologies.
Issue(s): Energy and Environment
Policy Integrity submitted comments to the Chugach National Forest advocating for the use of cost-benefit analysis in the revision of the forest’s Resource Management Plan. The US Forest Service updated its rule last year on how individual forests should develop their management plans, eliminating an explicit requirement to study the net present value of management alternatives. The forests, though, were left with some discretion, which we think forests like Chugach should use to incorporate cost-benefit analysis into their planning.
Our comments advice the forest staff to incorporate systematic economic analysis into its planning process. Using cost-benefit analysis would help to ensure that the final plan is in compliance with the statutory framework, is most effectively making use of the structured decisionmaking framework envisioned by the new Rule, and is setting a good example for other forests looking to revise their plans.
Policy Integrity submitted comments on draft recommendations proposed by the ACUS (Administrative Conference of the United States) Committee on Regulation on the use of cost-benefit analysis at independent regulatory agencies.
Our suggested changes to the recommendations include encouraging broader application of cost-benefit analysis to significant rulemakings by independent regulatory agencies and not limiting the scope of analysis to only monetized effects. Our comments also urge the committee to recommend establishing a peer review and public comment process for the development of written economic analysis guidance and having agencies publish and summarize their analyses in time to allow for meaningful public comment.
Policy Integrity submitted a letter to OIRA on its long delay in reviewing two rules from the Department of Labor. The rules, Occupational Exposure to Crystalline Silica and Occupational Injury and Illness Recording and Reporting Requirements, have been under review for 764 and 483 days, respectively. OIRA review of rules from the Department of Labor since 1994, the first full year of review under the 90-day framework established by Executive Order 12866, has lasted an average of only 60 days.
Undue delay in the regulatory review process can impose costs on the public, create uncertainty for regulated parties, and undermine OIRA’s credibility. Therefore, our letter requests that OIRA either release the rules it has been reviewing for more than 90 days, return those rules to the promulgating agency, or publically disclose the reasons for delay and propose an alternative schedule to complete the regulatory review.