The Article is a case study regarding a rule governing cooling water towers for power plants promulgated pursuant to the Clean Water Act ( CWA ). It analyzes the history of the Office of Information and Regulatory Affairs ( OIRA ) within the Office of Management and Budget ( OMB ), and its influence in compelling the Environmental Protection Agency ( EPA ) to conduct cost-benefit analysis of all regulations. It argues that the EPA should not receive Chevron deference since it has acted illegally by interpreting the CWA not as a technology-based environmental law, but instead as a cost-benefit law

Heinzerling, Lisa

English

In recent years, the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) has asserted a remarkable degree of authority over administrative agencies\u27 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 they operate. The most notable trend in this area has been OIRA\u27s insistence on converting technology-based environmental laws into cost-benefit laws. In OIRA\u27s hands, for example, the Clean Water Act ( the 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 (EPA) - the agency charged with implementing the Act - had chosen this course. But EPA did not choose this course; OIRA did. OIRA\u27s role in transforming EPA\u27s understanding of the Act robs EPA\u27s interpretation of any deference it might have been given under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. if EPA itself had chosen the interpretation.
I use the Clean Water Act, and in particular a rule governing cooling water towers for power plants, as my case study. But the analysis applies whenever OIRA foists upon an administrative agency an interpretation of a statute that the agency has Congressional authority to administer. When OIRA\u27s interpretation, not the agency\u27s, prevails, the agency\u27s reluctant embrace of OIRA\u27s views does not deserve the deference Chevron might otherwise afford

Statutory Interpretation in the Era of OIRA

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