he following remarks are from “Science and Federal Regulation: Is the Office of Management and Budget an Effective Gatekeeper?” a program held on May 19 in Washington, D.C. as part of the Washington Legal Foundation’s Media Briefing Series. The panel was moderated by Hon. Douglas H. Ginsburg, former chief judge of the U.S. Court of Appeals for the D.C. Circuit and former administrator of the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB). The panelists are: Paul Noe, vice president, Public Policy, with the American Forest & Paper Association and former counselor to the administrator of OIRA; Nikesh Jindal, counsel, King & Spalding and former associate general counsel at OMB; and Lawrence A. Kogan, managing principal of The Kogan Law Group and chief executive of the nonprofit Institute for Trade, Standards and Sustainable Development. This has been edited for length and style. A video of the full program can be found at the Washington Legal Foundation (at www.wlf.org/communicating/mediabriefing_detail.asp?id=268).
Judge Ginsburg: The federal courts routinely hear cases in which scientific/technical subject matter plays a large role. This is particularly true for the D.C. Circuit, which hears petitions challenging or seeking review of agency regulatory decisions, mostly of rulemaking. Because the agencies have scientific/technical expertise, federal courts typically defer to some degree – and some quite deeply – to their judgments.
Because OMB reviews only a fraction of the rules issued every year, and because the agencies frequently make policies outside of the rule-making process, OMB’s long-standing Information Quality Act (IQA) guidelines are no less important a tool than OMB review in helping to promote sound scientific decision making by the agencies. There’s a debate as to whether the guidelines have proven to be too much of a barrier to agency action or, on the other hand, should be enforced more strictly than they are now.