DOJ Notifies the Ninth Circuit that OMB is the Court of Last Resort on DQA Issues: Implications for Climate Change

(On March 9, 2015 in the Ninth Circuit in the case W. Harkonen v. USDOJ the Department of Justice announced  that although the DQA does not give members of the public the right for judicial review of agency denials of Requests for Correction it does provide the public with the right to seek such relief from OMB. The Department explained that the DQA is “policed” by OMB — not by the courts; DOJ went on to state that OMB has the right to “take action” if agencies are not living up to their DQA duties.

More specifically DOJ stated to the Court:

“And remember, the way that’s policed is through OMB. Agencies have to compile the sort of requests for corrections they get, through this administrative procedure, let OMB know what their responses are, and report back to the Office of Management and Budget. And if the Office of Management and Budget thinks that you are not living up to your duty to insure that information is of sufficient quality, objectivity, utility and integrity then the OMB can take action.”

In making this statement DOJ has seen the trees and with the passage of time hopefully will see the forest by recognizing the  justiciability of the DQA as evidenced by the decision of the DC Circuit in the Prime Time decision. Nonetheless CRE agrees wholeheartedly with the DOJ on the preeminent role of OMB in all DQA related matters.

Consequently given the aforementioned statement by the Department of Justice, CRE’s statement that OMB has the authority to resolve issues regarding compliance with the DQA regarding NSPS for coal fired plants is substantiated and is of particular interest in this proceeding.

The DQA not only confers a unique statutory authority to OMB to rule on Requests for Correction as explained by DOJ but it also confers the attendant deference to be accorded to its regulations by both federal agencies and the courts as required by Chevron and so enunciated in the Prime Time decision which declared that the OMB guidelines are “binding”.

CRE compliments DOJ for making clear what has been known for some time, namely that the Congress has vested OMB with the absolute authority to ensure that the American public is provided with accurate information.

Consequently OMB may assume jurisdiction over the CCS issue because of the conflict identified by CRE between EPA and its many stakeholders as so noted in the DQA Alert .

The bottom line is that the Department of Justice has decided  that OMB has the authority to act on Requests for Correction and the Court (Prime Time) has decided unequivocally that the OMB guidelines are binding; combining both decisions one readily concludes that OMB has an extraordinary  statutory basis for making  the final decision on a Request for Correction.  In fact the resultant authority is comparable to the statutory authority  OMB has to make the determinative decision on ICRs (Information Collection Requests) under the Paperwork Reduction Act (PRA).

OMB’s statutory  authority over Requests for Correction under the DQA is a natural outgrowth of the  authorities granted to OMB  to issue binding rules under  the Paperwork Reduction Act noting that  the DQA is a derivative of the PRA.

As CRE explains in this analysis, the Prime Time decision allows affected parties to file for relief in the courts against an agency decision to deny a Request for Correction.

Please see this post regarding the strategic options for dealing with CCS.

The essence of this message is that OMB can either resolve the CCS Climate Change controversy before a final (not to exclude an interim) rule is issued or resolve it in response to a Request for Correction after a final rule is issued; the former option is not only considerably less disruptive to coal miners but is also free of litigation.

N. B.  The DOJ statement did not distinguish between Executive Branch and independent agencies. Does the DOJ statement give impetus to OMB exercising control over Requests for Correction filed with independent agencies as well as the implementation of the CRE Blueprint (2) for OMB Review of Independent Agency Regulations?


Compiled by Jim Tozzi

Also see the CRE OptionThe Reviewability of the Data Quality Act and the CRE amicus brief.

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