Common Nonsense: Who's Regulating the Regulators?

Abstract

In White Stallion Energy Center, LLC v. Environmental Protection Agency, the D.C. Circuit upheld the long-delayed Utility Maximum Achievable Control Technology rule against allegations that the U.S. Environmental Protection Agency had impermissibly failed to consider costs before deciding that regulating hazardous air pollutants, including mercury, from power plants was “appropriate and necessary.” The court held that the Clean Air Act did not require the Environmental Protection Agency to consider costs, but executive orders on centralized regulatory review require that all new and proposed rules pass a cost-benefit analysis before taking effect. This Note examines the intertwined histories of environmental regulation and centralized regulatory review, which show that regulatory review began as a deregulatory project in response to industry complaints about environmental regulation and only later was rebranded as an objective tool for effective regulation. This Note surveys criticisms of the Office of Information and Regulatory Affairs, the agency responsible for vetting cost-benefit analyses of new rules, and concludes by exploring whether the Office of Information and Regulatory Affairs is necessary, and what reforms might be desirable.