March 2, 2007

Legal Ramifications of Revisions to Executive Order 12866: Are Agencies Still Due Chevron Deference?

On January 18, President Bush revised Executive Order 12866 on Regulatory Planning and Review. The revisions require that: 1) each federal agency’s Regulatory Policy Officer be a political appointee; 2) agencies explain the “specific market failure” that their rulemaking addresses; 3) agencies apply regulatory review to certain guidance documents; and 4) agencies estimate the total costs and benefits of all their annual rulemaking activities.

In this March 2, 2007, ELI Associates Seminar, we asked: What are the legal ramifications of the most recent revisions to OMB review of agency rules? Are rulemakings that are significantly revised at OMB still due judicial deference under the Chevron analysis? Does requiring that Regulatory Policy Officers be political appointees exert undue political influence over agency decisionmaking? What should the role of market failures be in regulatory review?

Panelists:
Lisa Heinzerling, Professor, Georgetown University Law Center
Sally Katzen, Adjunct Professor and Public Interest/Public Service Fellow, University of Michigan Law School; former Deputy Director, Office of Management and Budget, and former Administrator, Office of Information and Regulatory Affairs
John Knepper, Deputy General Counsel, Office of Management and Budget
Daniel Troy, Partner, Sidley Austin LLP, and Chair, ABA Section of Administrative Law and Regulatory Practice