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50 Envtl. L. Rep. 10385 (2020)
OIRA's Dual Role and the Future of Cost-Benefit Analysis

handle is hein.journals/elrna50 and id is 347 raw text is: A R T I C L E S OIRA'S DUAL ROLE AND THE FUTURE OF COST-BENEFIT ANALYSIS by Stuart Shapiro Stuart Shapiro is associate dean of faculty at Bloustein School of Planning and Public Policy, Rutgers University. SUMMARY The role that cost-benefit analysis (CBA) plays in regulatory decisionmaking is at a crossroads, as is the role played by the agency that oversees its implementation, the Office of Information and Regulatory Affairs (OIRA). The Trump Administration has largely demonstrated agnosticism toward CBA; this has left many to question whether OIRA can still play the role of ensuring quality analysis while serving as the eyes and ears of the president in overseeing regulation. This Article discusses the history of these dual functions within OIRA, the challenges posed by the regulatory policy of the Trump Administration, and possible alternative homes for CBA to ensure that there is a place for quality analysis of executive branch regulations. The Office of Information and Regulatory Affairs (OIRA) has, since it assumed the responsibilities of regulatory review in 1981, always had two primary missions. Populated by economists and individuals with advanced coursework in economics, it is the final word on the sufficiency of the agency cost-benefit analyses (CBAs) that are required for some agency regulations. As a result of its location in the Executive Office of the President, and its responsibility for being the eyes and ears1 of the president when it comes to regulatory policy, it also must ensure that agency regulations are consistent with presi- dential preferences. OIRA has attempted to balance these priorities through- out its existence.2 The challenges to doing so are fairly obvi- ous. CBA may suggest that a regulation that the president would oppose for political reasons is a wise idea. It may also suggest that a regulation preferred by the president has costs that far outweigh its benefits. Much of this balancing is invisible to the public and largely takes place via negotia- tions within the executive branch. Occasionally, however, Author's Note: This work was developed as part of a work- shop at the C. Boyden Gray Center for the Study of the Administrative State. I am grateful to the participants in this workshop for their comments on two drafts of this Article. All errors are my own. 1. Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 HARV. L. REV. 1075, 1082 (1985). 2. Stuart Shapiro, Unequal Partners: Cost-Benefit Analysis and Executive Review of Regulations, 35 ELR 10433 (July 2005). through public letters rejecting agency regulations,3 or regulations published with analyses that reach objectively questionable conclusions, one sees traces of the results of these debates. Presidents Ronald Reagan through Barack Obama all supported the idea of using CBA as a tool for mak- ing regulatory policy, even as, on occasion, their policies produced costs that clearly outweighed their benefits. There are signs that under the Donald Trump Adminis- tration, the commitment to CBA is weaker than in any of the five administrations that preceded it. The Trump Administration has issued an Executive Order that largely rejects the cost-benefit framework for decisionmaking.4 It has been exceptionally late in submitting required reports to the U.S. Congress on the costs and benefits of regula- tions. And individual regulations have been published by agencies either without analyses, or with analyses that have received widespread criticism from economists.5 What do these signals regarding the utility of CBA mean for OIRA's future and for the future of CBA in the regulatory process? While OIRA appears in several statutes (it was created in the Paperwork Reduction Act),6 its regu- latory review role is supported by Executive Orders rather than those laws. Therefore, OIRA's role reviewing regula- 3. See Office of Information and Regulatory Affairs, OIRA Return Letters, https://www.reginfo.gov/public/do/eoReturnLetters (last visited Mar. 16, 2020). 4. Infra notes 51-65. 5. Infra notes 67-87. 6. Paperwork Reduction Act, Pub. L. No. 96-511, 94 Stat. 2812 (1980) (codi- fied at 44 U.S.C. §§3501-3521). ENVIRONMENTAL LAW REPORTER 5-2020 50 ELR 10385