In a case that could have far reaching implications for agencies subject to the Regulatory Flexibility Act, the D.C. Circuit Court last month held that an EPA decision not to convene a small business advocacy review panel before issuing a rule was not judicially reviewable.  The decision by Judge Merrick Garland, for a unanimous 3-judge panel, was in National Association of Home Builders (NAHB) v. EPA.

NAHB challenged the EPA’s change of course on an “opt-out” provision of a rule established under the Residential Lead-Based Paint Hazard Reduction Act.  With the goal of protecting thousands of children from lead poisoning associated with older homes, the rule mandated that renovators of housing built before 1978 take certain steps to mitigate the dangers from lead paint.  The opt-out provision would allow an owner-occupant of housing without children under the age of six or pregnant women to waive …

Cross-posted from Legal Planet.

The Romney website portrays regulation as a huge drag on the economy. But it can’t decide who’s to blame. Is it all Obama’s fault? Or not just Obama, but a whole succession of Presidents, many of them presumably Republicans? Or is it bureaucrats who have overpowered all of these Presidents? The website goes around in circles, embracing each of these theories even though they contradict each other.

The website begins by placing the blame on developments during successive Presidencies — presumably that includes at least Obama and Bush, since “successive” implies at least two in a row. (Poor W, now taking the rap for having a pro-regulation Administration!)

But the website has another theory, too, which contradicts the first one. According to this second theory, the problem isn’t caused by Presidents at all, not even Obama. Instead, the root of …

Last week, The Washington Post ran a story about regulation, headlined, "Regulators surge in numbers while overseers shrink." The story came from Bloomberg and was written by reporter Andrew Zajac. The headline captures the thrust of the piece. Zajac writes:

As the U.S. government’s regulatory bureaucracy has ballooned, one agency has been left behind: the office that oversees the regulators. The number of people working in federal agencies with regulatory authority has doubled to about 292,000 under both Republican and Democratic administrations during the past 30 years.

Yesterday, the Columbia Journalism Review dismantled the story's premise in the kind of takedown that ought to prompt the Post not just to run a correction, but to reconsider the way it reviews future Bloomberg stories on the subject before it prints them.

The takedown comes from Ryan Chittum, writing for CJR's "The Audit on …

Cross-posted from Georgetown Law Faculty Blog.

Despite initial signs suggesting a different path, the Obama Administration has promoted the role of cost-benefit analysis in regulatory policy as fiercely as any administration before it. Nothing demonstrates this more clearly, I think, than the Administration’s bizarre and unfortunate decision to apply cost-benefit analysis to measures to limit rape and sexual abuse. 

Last month, the Department of Justice issued a final rule on rape and sexual abuse in confinement facilities.  The rule was required by the Prison Rape Elimination Act ("PREA"), a law passed by a unanimous Congress and signed by President George W. Bush.  In PREA, Congress directed DOJ to set national standards to prevent, detect, and respond to rape and other forms of sexual abuse in federal, state, and local confinement facilities.  PREA did not say that DOJ should do a cost-benefit analysis to decide whether actions …

Last December, the Federal Aviation Administration (FAA) finalized a new aviation safety rule designed to prevent excessive pilot fatigue, a problem that had contributed to at least one high-profile airline disaster—the Colgan Air Flight 3407 crash near Buffalo, New York, in February of 2009, which killed 50 and injured four—as well as to a disturbing series of mishaps and “near misses.”

It turns out that the rule took a mid-flight detour on its journey from proposal to final form, and that the way in which it was weakened along the way is a textbook example of how the White House Office of Information and Regulatory Affairs manages, at the behest of industry, to override the plain meaning of statutes requiring regulation. The proposal, issued for public comment in September 2010, covered cargo-only pilots as well as passenger pilots. That made a certain sense, because while …

The end of the school year always leaves me wishing that I could have lectured more clearly or somehow covered more in my classes on environmental law and policy. There was really just too much to discuss. How does one do justice to all those doubtful arguments in support of the Keystone XL pipeline? It’s a job creator! A gasoline price cap! A floor wax! Or the continuing saga of how the Obama administration should reorganize the offshore drilling responsibilities assigned to the MMS, I mean BOEMRE, I mean BOEM/BSEE. And there is never enough time to test it all.

This year I’ve assembled a few questions that have been on my mind this semester but that didn’t make it onto the exam. (Answers are posted at the bottom of this page). By the way, if you’re a regular reader of CPRBlog …

President Obama issued the latest salvo in the Administration's efforts to placate the business community this morning, in the form of a new Executive Order called “Identifying and Reducing Regulatory Burdens.”   The Order would expand and enhance the unfunded mandate that would require agencies to scour through the rule books, finding “excessive” rules that would save regulated companies big money. As I have written elsewhere in this space, the latest example of such an effort would jeopardize food safety by allowing huge poultry processors to self-inspect for salmonella, not incidentally making the lot of the workers who are already overburdened by workplace safety hazards close to intolerable.

The new order sugarcoats its regressive mandate by instructing agencies to seek “public comment”  on regulatory “look-backs,” which in practice does not mean comments from mom and pop, who are unlikely to spend their spare time on regulations.gov …

By CPR President Rena Steinzor and Media Manager Ben Somberg

Internal EPA emails obtained by CPR through a FOIA request reveal EPA officials’ frustration regarding the White House’s efforts to triangulate House Republicans’ ferocious attacks on regulations. A White House letter last year emphasizing regulatory costs but barely describing the lives saved and injuries avoided by strong protections angered environmental and public health advocates.  The newly released emails show that top EPA officials – who were not even consulted – were also not pleased.

On August 26 of last year, Speaker of the House John Boehner sent President Obama a letter requesting that the Administration provide a list of “planned new rules that would have an estimated economic impact of more than $1 billion.” The goal, of course, was to continue the GOP’s focus on the costs of regulations (the headline of Boehner’s press release: “Citing …

On one level, President Obama’s Executive Order issued Tuesday, “Promoting International Regulatory Cooperation,” seems benign enough.  After all, who would be against international cooperation and a desire to “reduce, eliminate or prevent unnecessary differences in regulatory requirements”?  Moreover, the Order on its face does little more than set out priorities and procedures for enhancing international regulatory cooperation.

Unfortunately, this Order is a one-way regulatory ratchet that leads only to deregulatory changes in the United States that at best will provide no new protection to U.S. citizens or the environment.  The Order is motivated solely to eliminate “unnecessary” differences in regulatory requirements that “might impair the ability of American businesses to export and compete internationally.” 

The priority for regulators is clear. Scour our regulations and compare them to those of our trading partners—or better yet simply let the U.S. Chamber of Commerce lead you …