A case in point is the recent issuance of the New Source Performance Standard for Coal Fired Plants—a cornerstone of the Administration’s Clean Power Program.
When EPA issued its proposed rule, it was wed to CCS, an unproven technology in view of experts who developed it. Nonetheless the proposed rule presented the technology as being an economically viable technology.
Industry responded in very cogent comments that EPA had the facts wrong; subsequently industry made the same points when the rule was under review at OIRA.
However, where was industry during the Intervening time period? Yes numerous press releases were issued as well as a number of requests for Congressional intervention.
Many of the attorneys advising industry were students of conventional administrative law who believe that the next step was to seek judicial review. What about working the administrative process during the interim time period between issuance of the proposed rule and its review by OMB?
During this interim time period some parties used the prevailing principles of the administrative process to highlight the downsides to EPA of continuing on its proposed course of action:
Establishment of an Interactive Public Docket to solicit public input
Filing a DQA Alert: Letter to EPA Administrator (2/3/14) re: OMB Peer Review Requirements
Presentation of Option: Option for Controlling Greenhouse Gas Emissions from Coal Fired Plants
Presentation of Draft Legal Complaint
EPA issued a final rule with an innovation that was dramatically different from what it proposed. It eliminated the CCS mandate but allowed for the use of an alternative technology which it named but for which it did not offer an operating definition—an opportunity for the regulated community to become equally innovative through a judicious use of the administrative process.
The end result is that it is doubtful that legal challenges will prevail and it is equally doubtful that the final rule will give meaningful relief to the coal industry unless it rids itself of traditional legal advice and attempts to exploit the administrative process during the implementation stage of the rule.
Any resultant inequities in the regulatory system should first be addressed by a vibrant and fully staffed OIRA and only—as a last resort—the courts, thus the need for an OIRA Teaching Module.
Although we clearly need process review, an OIRA Teaching Module would be extremely helpful. Most new administrators of regulatory agencies come to Washington without regulatory experience and do not understand how they are supposed to use regulatory impact analyses and regulatory flexibility analyses to inform their decisions. It is usually a shock to them to find out that every president for the last 30 years has required a small but effective unit in the Office of Management and Budget, the Office of Information and Regulatory Affairs (OIRA, to review significant regulations and has the ability to return them to the agencies for failure to either do a quality economic analysis or failure to pay attention to it. Meanwhile, many outside observers look at OIRA as a “black box” although their mission and actions are pretty clearly stated in economic executive orders. OIRA, and the threat of OIRA while rules are in review, is where a lot of changes are made to make regulations more efficient, getting “the biggest bang for the buck.” Many stakeholders could see improved regulations if they contributed to getting better economic analysis and reminding agencies that they should use that analysis. It can be effective and is a tool to use along with courts and Congress. Courts give deference to the agencies and there is a lot of competition to get your issue before Congress.