Statutory Rulemaking Considerations and Judicial Review of Regulatory Impact Analysis

November 01, 2018

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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.