Policy Integrity submitted comments on the draft statement by the Administrative Conference of the United States (ACUS) Committees on Administration and Management, and Regulation, for improving the timeliness, transparency, and effectiveness of the regulatory review process of the Office of Information and Regulatory Affairs (OIRA).
The ACUS draft statement reinforces some OIRA best practices and suggests some additional improvements. Policy Integrity’s comments make several suggestions for strengthening ACUS’s statement.
To help reduce delay, ACUS should incorporate into its statement four suggestions: If insufficient information is causing delay, OIRA should either announce a timeline for getting the information it needs or return the rule to the agency to collect more data; if a rule’s complexity or inter-agency review is causing delay, OIRA should set a new timeline; if insufficient resources are causing delay, OIRA should make it known publicly, then fix the resource problem as best it can; and OIRA should not hold rules indefinitely for political reasons or due to pressure from special interests.
To improve transparency, two changes should be made to the current draft statement. First, ACUS should build on the transparency recommendation it made in an earlier draft, which called for clarification of the agency’s role in determining when OIRA’s informal reviews end and when the formal reviews begin, and include simple, effective processes that increase transparency without undermining effectiveness. Specifically, ACUS should examine the Government Accountability Office reports from 2003 and 2009 for recommendations on well-documented ways to improve transparency. The second suggestion on transparency is that ACUS propose that regulatory agencies summarize all changes—and the motivation for those changes—made during the review process. In this way, there will be a clear historical account of exactly what changes occurred in the review.
Policy Integrity submitted comments on draft recommendations by the Administrative Conference of the United States (ACUS) Committee on Judicial Review for remand without vacatur in which a court returns a regulation to an agency for revision. This is an improvement to the traditional approach of annulling an agency action outright, which can result in creating an antiregulatory bias. But the draft recommendations could be strengthened in three ways:
First, ACUS could include a recommendation stating that remand without vacatur should be presumptively appropriate in cases where the interests of the prevailing parties would be served by the remedy. This would help preserve judicial review as a balanced part of the regulatory process.
Second, the recommendations should clarify that courts may consider asking parties for their views on the need to set a timeline for the agency to reconsider any rule that may be sent back to the agency but not annulled. A timeline for reconsideration would help keep revisions on track. Furthermore, if courts implement remand without vacatur more frequently, delays may increasingly become a problem.
Last, we suggest adding a recommendation that asks agencies to state clearly whether or not materials in the original docket will be incorporated into the docket for the remanded rule. We cite a case in which there was confusion over whether issues raised in the proceedings should be automatically incorporated into the revised rule. The default assumption should be that material from the remanded rule’s docket is not automatically incorporated into the revised rule’s record.
Policy Integrity, along with Environmental Defense Fund, Natural Resources Defense Council, and Union of Concerned Scientists, submitted comments on the social cost of carbon (SCC) within a rule proposed by the Department of Energy regarding energy conservation for commercial refrigeration equipment. The SCC calculation is an estimate of the damage caused by each ton of carbon emissions and used in the cost-benefit analyses of regulations with greenhouse gas emissions reductions.
Our comments support DOE’s use of the government SCC measure and the transparency of the process. The group also noted that current SCC values are likely underestimates and that this should be addressed in future updates.
On Oct 21, 2013, Policy Integrity, along with the above organizations, submitted similar comments to DOE on the SCC regarding energy conservation from metal halide lamp fixtures. The comments said that economic research shows the estimate used by the government may be too low. In addition, the group submitted comments on a petition for correction filed by industry groups to the Office of Management and Budget (OMB) and other agencies. The group urged the OMB to deny industry groups’ request to prohibit use of the social cost of carbon. The comments said the industry groups’ petition is based on erroneous arguments and that the government used proper models and statistical methodologies.
Prior to that, in 2011, Policy Integrity along with five other organizations sent a letter to senior U.S. government officials urging the Administration to fulfill its commitment to update the SCC to reflect improving science and economic understanding of climate change and its impact.
Policy Integrity, on behalf of the Washington, D.C.-based Center for Sustainable Economy, filed the opening brief in a lawsuit to halt illegal practices at the Bureau of Ocean Energy Management. The brief argues that incomplete and flawed economic analysis leads BOEM to sell new offshore leases too quickly and too cheaply, potentially costing the American public hundreds of billions of dollars.
Currently, America’s energy needs are being met, the vast majority of previous leases remain idle, and the U.S. has become a major exporter of petroleum and gas products. These factors make deepwater oil deposits far more valuable in the future. According to administrative law, the government must incorporate these considerations into its lease-sale decisions, including the option of deferred leasing.
The lawsuit was filed in the United States Circuit Court for the District of Columbia and will be argued next year.
In 2012, Policy Integrity sent a letter to BOEM along with Michael Livermore’s working paper, Patience is a(n Economic) Virtue requesting that the agency incorporate options value into their assessments of offshore drilling lease sales.
Policy Integrity, along with the Environmental Defense Fund, the Natural Resources Defense Council, and the Union of Concerned Scientists, submitted comments on the social cost of carbon. The calculation—an estimate of the damage caused by each ton of carbon emissions—was used in a rule proposed by the Department of Energy regarding energy conservation from metal halide lamp fixtures. The joint comments show that according to cutting-edge economic research, the estimate used by the government may be too low.
The group also submitted comments on a petition for correction filed by industry groups to the Office of Management and Budget (OMB) and other agencies. The industry groups’ request to prohibit the use of the social cost of carbon is based on erroneous arguments and our comments urge the OMB to deny the petition. We find that the government used the proper models and statistical methodologies to estimate damages of climate change and the benefits of emission reduction.
In 2011, Policy Integrity along with five other organizations sent a letter to senior U.S. government officials urging the Administration to fulfill its commitment to update the SCC to reflect improving science and economic understanding of climate change and its impact.