Public Participation

EPA’s well intended—but poorly  designed—rule for transparency in science will not provide the relief so claimed and will thwart real reform because it fails to capitalize on existing statutes which address an identical problem.

I am with the Center for Regulatory Effectiveness and I am highlighting an issue seldom addressed in the comments submitted to EPA as of this date notwithstanding EPA requesting that the  issue be addressed, namely:

“EPA solicits comment on this proposal and how it can best be promulgated and implemented in light of existing law and prior Federal policies that already require increasing public access to data and influential scientific information used to inform federal regulation.

For decades the academy of administrative law has written extensively on judicial precedent. Students are indoctrinated with the principle of Stare decisis, a Latin term which means “to stand by that which is decided”.

The emphasis on judicial precedent has a strong economic argument in support of its preservation independent of its merits because mastering the details of court rulings should yield a competitive advantage in litigation as a result of its questionable domination of law school curricula.

However with each passing day the emphasis on the widespread acceptance of judicial precedent may be misplaced however meritorious.  Consider for example a post of Professor Richard Pierce on a recent ruling of the Supreme Court; he concludes:

PPBS, Planning, Programming and Budget System, introduced by Secretary of Defense Robert McNamara, has a number of offspring.

It immediately shifted power from budget analysts to quantitative analysts. PPBS shops were prominent in the Department of Defense and eventually the concept was expanded to the civilian agencies.

As is the case with numerous government reform measures it disappeared; however some of its offspring remain in place. One of the most notable is centralized regulatory review. Centralized regulatory review is a descendant of the requirement that benefit-cost analyses be applied to regulations. See this article for the history.

Justice Breyer:

OIRA is “the lineal descendant of efforts by Presidents Nixon, Ford, and Carter to achieve greater coordination within the huge Executive Branch.”