OIRA Watch

In a forthcoming article in the Texas Law Review Professor Liza Heinzerling concludes: “either classical administrative law or Sierra Club v. Costle has to go.”

We agree. It is time for classical administrative law—which argues that informal rulemaking should be done in exclusionary rooms with entrances controlled by $800/hr attorneys—”has to go.” Obsolete administrative law practices should be shelved in order to capitalize on technological advances that allow substantive public participation in regulatory proceedings on an ongoing basis.

Much to its credit, the Administrative Conference of the US recognized this impeding collision and addressed this matter in its recent plenary session of several weeks ago.

Editor’s Note:  An OIRA Watch reader sent us the following essay discussing the Administration’s climate accord plans. We think the essay is worthy of publication and its policy proposal is worthy of public discussion. OIRA Watch invites our readers of all perspectives to substantively discuss the climate change essay on our CCS DQA Interactive Public Docket.

Alternative Regulatory Actions for Climate Change

The Obama Administration is invoking its executive authorities to the fullest. More specifically they are negotiating a non-legally binding agreement among nations to establish greenhouse gas emission levels by country.

Regulations.gov is down again—Sunday 8/24.

For the US government to entrust the keeping of all the comments it receives from the public on a website managed by a multi-headed, non-statutory body with no budget is beyond belief.

See repeated warnings on this matter on this attachment, ACUSProposal.

Also see the following:

http://www.thecre.com/oira/?p=2391

http://www.thecre.com/oira/?p=1782

To: ABA Conference Group

I am pleased to participate in the upcoming ABA  conference which will discuss “ex parte” contacts.

Please note I have on prior occasions offered my opinion on an interpretation of a judicial decision, in particular  Sierra Club v. Costle.

Individuals  who know  I am  not an attorney have made inquiries   regarding my credentials to make such interpretations.

Recognizing  I could  not  correct, at least in the short run,  the  deficiencies in my DNA that prevented me from being  an attorney I decided that  the next best thing was to become  a plaintiff  and  winning —-at least on the issue of the reviewability of a  standalone   report.

We have seen over recent years agency disregard for the Congress since it has become so polarized.

We now see a comparable dismissive attitude directed  to the Courts possibly as result of a number of 5/4 decisions by the Supreme Court or more likely as a  result of  the new emphasis on using agency administrative powers to their  fullest.

Consider this chain of events.

A plaintiff seeks relief in the court  claiming that the agency had no authority to issue a rule.  See 304bcomplaint (340b)

The Court opines in no uncertain terms   that the agency did not have the authority to issue the  rule. See  340b  304bpiorder

Jim MacRae, a long time member of CRE’s Board of Advisors has passed as a result of a battle with leukemia.

Jim was a recognized expert in the regulatory process. He had the unique experience of being the only Deputy Administrator in the history of OIRA who also served as the Acting Administrator during the entire tenure of a sitting President. Mr. MacRae had the difficult job of defending OIRA’s role in its  early days often to a very hostile Congress

A number of scholars have concluded that there are two cornerstones of the regulatory state:

Centralized Regulatory Review

The Administrative Procedure Act (APA)

Much has been written about centralized regulatory review in recent years and it has been designated at the most significant institutional component of the administrative state. In fact this website is dedicated to that subject; also see theomb.us

With respect to the APA one might designate it as the most significant procedural component of the regulatory state with Senator Norris as its father.  Senator Norris introduced S. 1835 in the 73rd Congress (1933), the APA passed in the 79th Congress (1946). Senator Norris, of Nebraska, was Chairman of the Senate Judiciary Committee

Publisher’s Note: The publisher of this website was instrumental in the initiation of centralized regulatory review in the White Office of Management and Budget– its origins having begun in the Johnson Administration and utilized by eight subsequent Presidential Administrations.

A plethora of press articles are coming on line in the last eight hours which cast the OMB review in a non-favorable light. I remind all our readers that the office in OMB, the Office of Information and Regulatory Affairs, consisting of less than four dozen employees out of a million plus federal employees is the only group between  an unchecked regulatory bureaucracy and the taxpayers check book.

Editor’s Note: A pdf of CRE’s Press Release is available here.

CRE Press Release 10:00 AM Wednesday May 28, 2014

EPA’s proposed rule for new coal plants has been called a “war on coal”. The “war on coal” occurs because the standard in the proposed rule can only be achieved by the installation of a costly technology called CCS, carbon capture and sequestration, which virtually no utility can neither afford nor implement and will result in a ban on the construction of new coal plants.

Editor’s Note:  In a new Politico article, Shaun Donovan, President’s pick to head OMB, the Office of Information and Regulatory Affairs (OIRA) parent organization, discussed his plans for acting on regulations.

From: Politico

Obama’s new regulatory czar
By: Edward-Isaac Dovere

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Donovan, the nominee to take over the Office of Management and Budget, won’t have a huge public profile, but will be key in shaping Obama’s legacy and advancing a progressive agenda through federal regulations.

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