OIRA Meddling Leaves Agencies Vulnerable in Court

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 regime.

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 [1]," __ Fordham Urb. L.J. ___ (forthcoming).