Statutory Rulemaking Considerations and Judicial Review of Regulatory Impact Analysis

70 Admin. L. Rev. 873, 2018

87 Pages Posted: 4 Mar 2020 Last revised: 2 Apr 2020

See all articles by Reeve Bull

Reeve Bull

Administrative Conference of the United States

Jerry Ellig

George Washington University - Regulatory Studies Center

Date Written: November 1, 2018

Abstract

This paper examines the various statutory standards that require agencies to conduct some form of economic analysis and explores which standards correlate with more rigorous judicial review when a rule is challenged in court and with more rigorous regulatory analysis by the agency preparing the rule. It finds that more explicit statutory standards, in which Congress both affirmatively directs the agency to consider the economic effects of proposed rules and sets forth specific factors for agencies to consider, correlate both with more stringent judicial review and with higher quality economic analysis. By contrast, when Congress sets a vague statutory standard, such as encouraging the agency to "consider" economic costs and/or benefits, the stringency of judicial review and the quality of agency economic analysis varies from case to case and rule to rule. The authors recommend that Congress adopt more explicit standards in order to achieve greater consistency in agency economic analysis and the judicial review thereof.

Keywords: Administrative Law, Benefit-Cost Analysis, Judicial Review, Statutory Drafting

Suggested Citation

Bull, Reeve and Ellig, Jerry, Statutory Rulemaking Considerations and Judicial Review of Regulatory Impact Analysis (November 1, 2018). 70 Admin. L. Rev. 873, 2018, Available at SSRN: https://ssrn.com/abstract=3531042

Reeve Bull (Contact Author)

Administrative Conference of the United States ( email )

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HOME PAGE: http://www.acus.gov

Jerry Ellig

George Washington University - Regulatory Studies Center ( email )

805 21st St. NW
Washington, DC 20052
United States
703-375-9410 (Phone)

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