Statutory Interpretation in the Era of OIRA

Abstract:     
In recent years, the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget has asserted a remarkable degree of authority over administrative agencies' rulemaking processes. One of the ways in which OIRA has exercised power over agencies has been to foist upon them its own views about the requirements of the statutes under which the agencies operate. The most notable trend in this area has been OIRA's insistence on converting technology-based environmental laws into cost-benefit laws. In OIRA's hands, for example, the Clean Water Act is being transformed from a technology-based regime into a cost-benefit regime.

I will argue that this transformation is illegal. Given the plain language of the statute, it would be illegal even if the Environmental Protection Agency - the agency charged with implementing the Act - had chosen this course. But EPA did not choose this course; OIRA did. OIRA's role in transforming EPA's understanding of the Act deprives EPA of any argument for deference under Chevron. OIRA is not charged with implementing the Clean Water Act; it is not an expert in the relevant fields; and its subterranean role in interpreting the Act undermines the accountability-based case for Chevron deference.

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