I’m a sucker for legal history, and here’s why: it is particularly refreshing to read arguments developing out of a newly introduced legal or political idea. Lately, the notion that the President might influence and politicize agencies’ rulemakings has gained some B or C class celebrity attention (alot, anyway, for regulatory affairs).
Say, for instance, EPA takes up a statutory duty to create a rule to reduce a certain air pollutant, but also must take into account the varying costs of doing so. After taking in and responding to the legally required public comments, EPA staff meet with some of the President’s staff to talk about the different options for the rule. Anything wrong if those conversations are fully off the record? What if the President’s staff tells EPA just how it needs to analyze the options, and that, whatever the final rule, its benefits must outweigh its costs?
By now, we’re used to the White House’s Office of Management and Budget/OIRA review, and arguments against cost benefit analysis or centralized review tend to be huffed-out, hyperbolic, normative statements against politically watered down regulations. It is far more interesting, in my mind, to read arguments proffered shortly after Reagan’s Executive Order 12291 (adopted by Clinton as the more frequently cited 12866) that set up the now-routine notion of OMB as regulatory gatekeeper.
The DC Circuit in 1981 ruled that folks from OMB could indeed talk with folks at EPA off the record after the comment period closed. The case, Sierra Club v. Costle, largely stands for that proposition today; but, it is fun to read the commentary it inspired in its day. So, I commend the article in Cato/AEI’s Regulation magazine, “Regulatory Oversight Wins in Court.”
