OIRA Meddling Leaves Agencies Vulnerable in Court

by Guest Blogger, 4/27/2006

OIRA's meddling in regulations has already been dealt with fairly extensively in the context of separation of powers and the imperial presidency, but CPR member scholar Lisa Heinzerling now has a (characteristically brilliant) law review article framing OIRA's interference as an admin law problem:

In recent years, the Office of Information and Regulatory Affairs
(OIRA) within the Office of Management and Budget (OMB) has asserted
a remarkable degree of authority over administrative agencies’
rulemaking processes. One of the ways in which OIRA has exercised
power over agencies has been to foist upon them its own views about
the requirements of the statutes under which they operate. The most
notable trend in this area has been OIRA’s insistence on converting
technology-based environmental laws into cost-benefit laws. In
OIRA’s hands, for example, the Clean Water Act ... is being
transformed from a technology-based regime into a cost-benefit
I will argue that this transformation is illegal. Given the plain language
of the statute, it would be illegal even if the Environmental
Protection Agency (EPA)—the agency charged with implementing
the Act—had chosen this course. But EPA did not choose this
course; OIRA did. OIRA’s role in transforming EPA’s understanding
of the Act robs EPA’s interpretation of any deference it might
have been given under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc. if EPA itself had chosen the interpretation.

Heinzerling uses the Clean Water Act as a case example, but her argument has much, much larger relevance:

I use the Clean Water Act, and in particular a rule governing cooling
water towers for power plants, as my case study. But the analysis
applies whenever OIRA foists upon an administrative agency an interpretation
of a statute that the agency has Congressional authority
to administer. When OIRA’s interpretation, not the agency’s, prevails,
the agency’s reluctant embrace of OIRA’s views does not deserve
the deference Chevron might otherwise afford.

Download the article - Lisa Heinzerling, "Statutory Interpretation in the Era of OIRA," __ Fordham Urb. L.J. ___ (forthcoming).

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