Cost-Benefit Analysis and Agency Independence
Michael A. Livermore
University of Virginia School of Law
September 1, 2013
University of Chicago Law Review, Forthcoming
Virginia Law and Economics Research Paper No. 2013-09
The presidential mandate that agency rulemakings be subjected to cost-benefit analysis and regulatory review is one of the most controversial developments in administrative law over the past several decades. There is a prevailing view that the role of cost-benefit analysis in the executive branch is to help facilitate control of agencies by the Office of Information and Regulatory Affairs (OIRA). This Article challenges that view, arguing that cost-benefit analysis in fact helps preserve agency autonomy in the face of oversight. This effect stems from the constraints imposed on reviewers by the regularization of cost-benefit analysis methodology and the fact that agencies have played a major role in shaping that methodology. The autonomy-preserving effect of cost-benefit analysis has been largely ignored in debates over the institution of regulatory review. Ultimately, cost-benefit analysis has ambiguous effects on agency independence, simultaneously preserving, informing, and constraining agency power.
Number of Pages in PDF File: 62
Keywords: cost-benefit analysis, regulatory review, OIRA, EPA, regulation, unitary executive
Date posted: September 20, 2013
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