The Black Box of OIRA
This post was originally published on Legal Planet. Reprinted with permission.
The Office of Information and Regulatory Affairs (OIRA) oversees government regulation across the federal government. Some portray it as a guardian of rationality, others as biased in favor of industry. Public information about OIRA is so limited that it's impossible to know one way or the other, due to the veil of secrecy that surrounds the place.
Here's a list of a dozen things we don't know, but should, about this secretive office:
- How is the place organized? The EPA Office of Policy has an organization chart. Not so OIRA.
- Who are the staff, what are their qualifications, and how much experience do they have? There's word of mouth about this, but no hard data. How much expertise the staff has in epidemiology, econometrics, modeling, or other specialties is unknown. Where do OIRA folks go when they leave? Is this a revolving door, where people move to lobbying groups when they move on? Do they go to other parts of government? Academe or think tanks?
- What do the staff actually do? It's not clear how much time staff members themselves spend reviewing economic analysis by agencies, let alone scientific …
This op-ed was originally published in The Regulatory Review. Reprinted with permission.
The idea that unelected judges rather than an elected U.S. President should resolve "major questions" that arise in the course of executing law makes no sense. And the idea that major questions should be resolved to defeat policies that the two Houses of the U.S. Congress and the President have agreed to makes even less sense. Yet, the so-called "major questions doctrine" endorsed by the U.S. Supreme Court's current majority suggests that the rule of law only governs minor cases, not matters of "vast economic and political significance."
In important cases, the Court has abandoned the role that the Administrative Procedure Act assigns it—checking the executive branch when it contravenes the policies that Congress and the President have approved. Instead, it has assumed the role of constraining the faithful execution …
This post was originally published on Verfassungsblog. It is reprinted under Creative Commons License Attribution-ShareAlike 4.0 International.
On the same day, the U.S. Supreme Court issued decisions governing requests for emergency stays of two rules protecting Americans from COVID-19. Both rules relied on very similar statutory language, which clearly authorized protection from threats to health. Both of them presented strikingly bad cases for emergency stays. Yet, the Court granted an emergency stay in one of these cases and denied it in the other. These decisions suggest that the Court applies judicial discretion unguided by law or traditional equitable considerations governing treatment of politically controversial regulatory cases.
Similar cases decided differently
In NFIB v. OSHA, the Court stayed a rule insisting that large employers require either vaccination or testing and masking of their employees, but it denied a stay of a rule demanding vaccination of employees …
This op-ed was originally published by Slate.
On Feb. 28, the Supreme Court will hear oral arguments in the first of an expected wave of cases challenging governmental action to address the climate crisis. The court’s grant of four petitions seeking review in this case—two by coal companies and two by states—portends that the six conservative justices will erect significant barriers to meaningful climate policy and will continue to interfere with democratic governance in disregard of the rule of law.
The issue presented in the case, West Virginia v. Environmental Protection Agency, concerns the EPA’s authority to regulate pursuant to its mandate in the Clean Air Act. Oddly, there’s no regulation in effect for the court to review; instead, it will ostensibly review the interpretation of the act adopted by the Obama administration nearly a decade ago, which gave the EPA the …
On October 1, 2021, the U.S. Senate confirmed the nomination of Tracy Stone-Manning to head up the Bureau of Land Management (BLM). This is the U.S. Interior Department agency charged with overseeing national monuments and other public lands, as well as key aspects of energy development.
A longtime conservation advocate, Stone-Manning has worked for the National Wildlife Federation, served as chief of staff to former Montana Gov. Steve Bullock and advisor to Sen. Jon Tester, and led Montana's Department of Environmental Quality. Just three months since her confirmation, she is beginning to reverse the previous administration’s harmful policies and ensure our public lands are conserved and used in ways that benefit us all.
Last year, the Center for Progressive Reform laid out five priorities for her and the agency. Here’s an update on progress so far:
1. Restore or expand all targeted national …
This post was originally published by the American College of Environmental Lawyers. Reprinted with permission.
A global movement is underway to protect 30 percent of the Earth's lands and waters by 2030. More than seventy countries support this goal to combat climate change and slow the pace of species extinction, both of which are accelerating at an unprecedented rate. The two threats are closely intertwined. The greatest drivers of species extinction are climate change and habitat loss; by the same token, the loss of intact, functioning habitat and biodiversity diminishes the capacity for climate resilience.
In the United States, one of President Biden's earliest executive orders, issued in his first week in office, established a goal to conserve at least 30 percent of U.S. lands and water and 30 percent of U.S. ocean areas by 2030. The order proclaims an "all of government" approach to …
On the morning of January 9, 2014, residents of Charleston, West Virginia, noticed an unusual licorice-like odor in their tap water. Within hours, a federal state of emergency was declared as 300,000 West Virginia residents were advised to avoid contact with their tap water, forcing those affected to rely on bottled water until the water supply was restored over one week later.
Even after service was restored, traces of the chemical remained detectable in Charleston's water supply months after the spill. The economy of the region was brought to an abrupt halt and nearly 400 people sought emergency room care with symptoms of nausea, headaches, and vomiting.
The cause of the contamination was methylcyclohexane methanol (“MHCM”), a chemical used in industrial coal processing. Roughly 11,000 gallons of the substance had leaked from a severely corroded aboveground storage tank located a mile and a half north …
This post was originally published on Legal Planet. Reprinted with permission.
The Biden administration announced on Monday that it would not meet a February target date to issue a revised definition of federal jurisdiction under the Clean Water Act. It still plans to issue a revised definition later in the year. That sounds like a very technical issue. But it actually determines the extent to which the federal government can prevent water pollution and protect wetlands across the nation. The Biden proposal basically calls for case-by-case decisions about federal jurisdiction. It's also the latest chapter in one of the most snarled-up regulatory issue of our times.
The story begins with the 1972 passage of the Clean Water Act. The act requires permits for dredge-and-fill operations and for pollution discharges into "navigable waters." Traditionally, navigable waters were tidal waters or waterways that could be used for commercial …
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