D.C. Circuit Review – Reviewed: Notice & Comment Blogger to OIRA Administrator

by Aaron Nielson — Friday, Apr. 14, 2017@Aaron_L_Nielson

In you case missed it, Profesor Neomi Rao has been nominated to serve as the next Administrator of the White House Office of Information and Regulatory Affairs. In the world of “admin law,” there are few positions more important than OIRA Administrator. Cass Sunstein, a former OIRA Administrator, has explained at length why the position is so significant.

Here is the White House press release:

Ms. Rao is a professor at the Antonin Scalia Law School at George Mason University, where she founded and directs the Center for the Study of the Administrative State. Her research and teaching focuses on constitutional and administrative law. Currently a public member of the Administrative Conference of the United States, Ms. Rao has previously served in all three branches of the federal government. She served as Associate Counsel to President George W. Bush; counsel for nominations and constitutional law to the U.S. Senate Committee on the Judiciary; and law clerk to Justice Clarence Thomas of the U.S. Supreme Court. She practiced public international law and arbitration at Clifford Chance LLP in London. Ms. Rao received her JD with high honors from the University of Chicago and her BA from Yale University.

All of that is well and good, but it also is incomplete. Professor Rao has also been a guest blogger here at the Yale Journal on Regulation!

(She also has been a friend of mine for a long time; years ago, she was my supervisor when I was an intern. I expect she will do a great job.)

Professor Rao’s nomination got me thinking: OIRA is important, but how often is it mentioned in D.C. Circuit opinions? So I did a search for “Office of Information and Regulatory Affairs.” Before conducting this search, I suspected a low number, but the answer surprised even me. It turns out OIRA has only been mentioned in six D.C. Circuit opinions:

  • Defenders of Wildlife v. Perciasepe, 714 F.3d 1317 (2013): “UWAG cites a memorandum from the Office of Management and Budget (OMB) encouraging federal agencies with rulemaking authority, ‘where appropriate and feasible, and to the extent permitted by law,’ to consider, inter alia, ‘[e]arly consultation with, advance notice to, and close engagement with stakeholders.’ Memorandum from Cass R. Sunstein, Administrator, Office of Information and Regulatory Affairs, Cumulative Effect of Regulations 1-2 (Mar. 20, 2012). Whether EPA is in compliance with the memorandum, the memorandum simply provides guidance regarding Executive Order No. 13,563, 76 Fed. Reg. 3,821, 3,823 (Jan. 18, 2011), which provides: ‘This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, [or its] agencies.’ Neither the OMB memorandum nor the Executive Order provides support for UWAG’s procedural injury argument.”

     

  • Coalition for Responsible Regulation v. EPA, 684 F.3d 102 (2012): “EPA only submitted a draft of the Endangerment Finding to the Office of Information and Regulatory Affairs pursuant to Executive Order 12,866. EPA contends that this was merely an informal review process, not ‘formal review and comment’ — at least when compared with a statutory review-and-comment requirement in which other agencies are given the opportunity to provide written comments about the impacts of a proposed regulation on the reviewing agency’s universe of responsibility.”

     

  • Public Citizen, Inc. v. NHTSA, 374 F.3d 1251 (2004): “NHTSA then submitted a draft final regulation to the Office of Management and Budget for review. See Memorandum from Stephen P. Wood, Assistant Chief Counsel for Rulemaking, National Highway Traffic Safety Administration, to Docket No. NHTSA 00-7013; Notice 1 at 1 (May 10, 2000); see also Exec. Order No. 12,866 § 6(a)(3)(B)(i), 58 Fed. Reg. 51,735 (Sept. 30, 1993) (requiring agencies to submit certain draft regulations to OMB’s Office of Information and Regulatory Affairs). The draft proposed an unbelted rigid barrier test to be implemented in two stages. During the first stage, from September 2003 through August 2006, manufacturers would have to test vehicles using a maximum test speed of twenty-five miles per hour, while in the second stage, from September 2007 through August 2010, the maximum test speed would increase to thirty miles per hour.”

     

  • Henke v. US Dept. of Commerce, 83 F.3d 1445 (1996): “OMB suggested that an agency may protect the identities of peer reviewers via exemption (k)(5) so long as the agency first publishes a regulation stating its intention to do so as required by 5 U.S.C. § 552a(k). GAO Report at 16, 20 (JA 238, 242) (January 17, 1991 Letter from James B. MacRae, Jr., Acting Administrator of OMB’s Office of Information and Regulatory Affairs, to James F. Bouck, GAO Evaluator).”

     

  • Meyer v. Bush, 981 F.2d 1288 (1993): “Soon after his inauguration in 1981, President Reagan embarked on an effort to reduce regulatory burdens on the economy. As part of that program, the President established a cabinet-level Task Force on Regulatory Relief which included the Vice President, the Attorney General, the Secretaries of the Treasury, Commerce and Labor Departments, the Director of the Office of Management and Budget (OMB), the Chairman of the Council of Economic Advisers, and the President’s Assistant for Policy Planning. President Reagan directed the Task Force to ‘review pending regulations, study past regulations with an eye towards revising them and recommend appropriate legislative remedies.’ As head of the Task Force, Vice President Bush named the Administrator for OMB’s Office of Information and Regulatory Affairs (OIRA) as the Executive Director of the Task Force and a Special Assistant to the President as the Associate Director. Using staff from OMB, the Task Force operated from the Office of the Vice President.”

     

  • Wolfe v. Department of Health & Human Services, 815 F.2d 1527 (1987): “Moreover, the new procedures adopted by OMB’s Office of Information and Regulatory Affairs (OIRA), which permit public access to all correspondence exchanged between OIRA and the head of an agency during the review process after final action is taken, see letter of August 15, 1986 from the Department of Justice to the Clerk of this court, suggest that OMB does not believe that public knowledge of OMB’s disposition of the proposed rules that come before it will ‘chill’ decisionmakers’ candor in considering those rules.”

     

    That’s it. Personally, I expected more than that. This week, the D.C. Circuit decided five cases. Not one mentions OIRA.

    In Carpenters Industrial Council v Zinke, Judge Kavanaugh, joined by Judges Griffith and Srinivasan, considered a lumber industry group’s standing to contest a “critical habitat designation” of a huge amount of forest land as owl habitat. The court explained that “the available evidence adequately demonstrates (1) that the critical habitat designation is substantially probable to cause a decrease in the timber supply from designated forest lands; (2) that it is substantially probable that Council member companies … obtain timber from those forest lands; and (3) that the decrease of the timber supply from those forest lands is substantially probable to cause those Council member companies to suffer economic harm.” Yup — that amounts to standing. (As a Westerner, this is my favorite passage from the opinion: “In 2012, the U.S. Fish and Wildlife Service issued a Final Rule designating 9.5 million acres of federal forest lands in California, Oregon, and Washington as critical habitat for the northern spotted owl. To put the agency’s action in perspective, the designated critical habitat area is roughly twice the size of the State of New Jersey. For Easterners, imagine driving all the way up and then all the way back down the New Jersey Turnpike, and you will get a rough sense of the scope of the critical habitat designation here.”)

    In Emera Maine v. FERC, Judge Sentelle (joined by Judges Millett and Randolph) rejected a ratemaking decision by the FERC. FERC can “impose a new rate [of return]” on the power companies “only after having made the determination that the utility’s existing rate fails” a reasonability test. Thus, “FERC bore the burden of making an explicit finding that the existing ROE [return on equity] was unlawful before it was authorized to set a new lawful ROE,” and it failed to do this. (There is more going on this case. If ratemaking is your thing, give this one a read.)

    In Aka v. Tax Court, Judge Griffith (joined by Judge Brown) wrote the court’s opinion and a separate concurrence. Judge Rogers concurred in the judgment. It seems that an attorney was disbarred from the Tax Court after “missing hearings, ignoring opposing counsel’s requests for documents and conferences.” The court upheld that decision: “The United States Tax Court has disbarred Wilfred I. Aka for repeated failures to discharge his duties to the court, clients, and opposing counsel alike. Today we uphold its order, clarifying in the process the basis for our jurisdiction in this case and the proper standard of review.” Judge Rogers wrote separately to address her own view on the standard of review.

    In United States v Palmer, Judge Rogers, joined by Judges Brown and Griffith, stated that “the court need not decide today whether the Fair Sentencing Act applies to a resentencing upon a successful collateral attack pursuant to Section 2255. The district court left intact appellant’s original trial sentence in 1989 except to apply intervening changes in the law on the merger of offenses. This limited revision to an otherwise final judgment was not a reevaluation of the appropriateness of appellant’s original sentence.” Judge Brown concurred to explain that even if resentencing had occurred, the Fair Sentencing Act still would not apply. (There also is a lot going on in this case. But again, if this is your field, you get the gist.)

    Finally, in Waterkeeper Alliance v. EPA, Judge Williams, joined by Judge Srinivasan, wrote for the court to reject a decision by the EPA that would exempt certain farm organizations from making reports about “two of the hazardous substances emitted by animal waste as it decomposes.” The court performed a Chevron analysis and found that “[the] statutory provisions set forth a straightforward reporting requirement for any non-exempt release.” (Here is a provocative way to open an opinion: “Anyone with a pet knows firsthand that raising animals means dealing with animal waste. But many of us may not realize that as the waste breaks down, it emits serious pollutants — most notably ammonia and hydrogen sulfide. While those emissions are miniscule for pet owners, they can be quite substantial for farms that have hundreds or thousands of animals.”) Judge Brown concurred: “I join in the Panel Opinion because it does not extend to the situation in which an agency’s statutory interpretation is found to be ‘reasonable’ without a court first determining the statutory bounds of agency authority. But if Chevron’s two-step inquiry can be collapsed into one ‘reasonableness’ inquiry no different than current Step Two jurisprudence, there is yet another reason to question Chevron’s consistency with ‘the judicial department[’s]’ ’emphatic[]’ ‘province and duty … to say what the law is.'” (As with the other cases this week, this one is important — especially if you care about “de minimis” exceptions. For what it worth, the D.C. Circuit cannot collapse Chevron into a single step without first tossing aside its Chevron Step One-and-Half precedent.)

    That’s the week! Enjoy. (Lucky me, now I get to return to writing an exam.)

     

    * Today is the last day of classes at BYU Law. Finals start next week. I would like to thank Natalie Lambert for providing excellent research assistance for these posts this year.
     

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  • About Aaron Nielson

    Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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