September 2009 - Posts
The OIRA Draft 2009 Report to Congress on the Benefits and Costs of Federal Regulations is available here. According to the summary provided in the Federal Register Notice of Availability and Request for Comments (which is also available on that same website), the draft report is divided into four chapters. Chapter I examines the benefits and costs of major federal regulations issued in fiscal year 2008 and summarizes the benefits and costs of major regulations issued between September 1998 and 2008. It also discusses regulatory impacts on state, local, and tribal governments, small business, wages, and economic growth. Chapter II examines trends in regulation since OMB began to compile benefit and cost estimates records in 1981. Chapter III provides an update on implementation of the Information Quality Act. Chapter IV summarizes agency compliance with the Unfunded Mandates Reform Act.
On September 14, 2009, the European Ombudsman appeared before the Committee on Petitions of the European Parliament to present the Annual Report for the year 2008. The presentation is available here.
According to the presentation, the Ombudsman closed a record number of inquiries in 2008 - 355 - with most taking less than a year. The Ombudsman registered a total of 3,406 complaints during the year in question, which represents a 6% increase compared to 2007. In almost 80% of cases registered, they were able to help the complainant by opening an inquiry into the case, transferring it to a competent body, or giving advice on where to turn.
An important aspect of the presentation was that in 2008 by far the most common allegation examined was lack of transparency in the EU administration. This allegation arose in 36% of all inquiries and included refusal of information or documents. This finding supports conclusions scholars have reached with respect to a perceived lack of transparency in the EU administration. The Ombudsman himself stated: "It is with a certain degree of concern that I have noted the high number of complaints alleging lack of transparency. After all, an accountable and transparent EU administration is key to building citizens' trust in the EU."
On September 14, 2009, the European Commission issued a Report to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the application and effectiveness of the directive on strategic environmental assessment (Directive 2001/42/EC- hereinafter the "SEA Directive") The Report is available here.
The SEA Directive requires certain public plans and programs (P&P) to undergo an environmental assessment before they are adopted. The P&P covered by the Directive are subject to an environmental assessment during their preparation, and before their adoption. This includes the drawing up of an environmental report in which the likely significant effects on the environment and the reasonable alternatives are identified, and the carrying out of consultations (with the public, the environmental authorities, and with other member states (MS) in the case of transboundary impacts). The environmental report and the results of the consultations are taken into account before adoption. Once a P&P is adopted, the environmental authorities and the public are informed and relevant information is made available to them. In order to identify unforeseen adverse effects at an early stage, significant environmental effects of the P&P are to be monitored.
According to the Report, consideration and identification of alternatives in the environmental report is one of the few issues that have given rise to problems in MS. Extensive national guidelines have been developed by some MS in order to provide support for the identification and selection of reasonable alternatives in individual procedures. However, the majority of MS have not defined how this should be done. Most national legislations do not provide a specific definition of 'reasonable alternatives' or a number of alternatives that must be assessed; the choice of 'reasonable alternatives' is determined by means of a case-by-case assessment and a decision. All MS report that the 'do-nothing' alternative has to be included in the environmental report on a mandatory basis.
With respect to consultations, the Report explains that since the SEA Directive does not provide detailed specifications about the procedures for public consultation, a wide range of methods are used: public announcements, publication in official journals or the press, public meetings, internet surveys and questionnaires. The Commission also points out that general experience shows that public consultation, especially when organized at an early stage of planning and when understood as a process, contributes to a higher acceptance of the P&P, and therefore to the early identification and resolution of conflicts.
Furthermore, the Report refers to the relationship of the SEA Directive with other EU legislation, including the Habitats and the Environmental Impact Assessment Directives.
In an op-ed published in the Washington Post of September 13, 2009 (available here, Sen. Kay Bailey Hutchison (R-Tex.) argues that the deployment of a great number of White House "czars" "sets a dangerous precedent that undermines the Constitution's guarantee of separated powers." The White House czars are presidential assistants charged with responsibility for given policy areas. Sen. Hutchison's argument is that these officials hold unknown levels of power over broad swaths of policy; therefore, President Obama should submit each of his policy czars to the Senate so that the latter can review their qualifications, roles and the limits on their authority.
In response to this op-ed, David B. Rivkin Jr. and Lee A. Casey suggest, to the contrary, that "far from undermining the separation of powers the president's right to organize his White House policymaking apparatus is protected by that very constitutional principle." (Washington Post, September 19, 2009 available here) They explain that however much the czars may drive the policymaking process at the White House, they cannot determine what that policy will be. This is the critical difference between the White House czars and federal officials who must be confirmed by the Senate under the "appointments clause" of the U.S. Constitution. In the absence of legislation the only power exercised by White House czars comes from their proximity to the president and the access this provides. As they note, this might be power, but does not constitute "significant authority" under U.S. law and thus is not subject to the requirements of the "appointments clause."
The Senate confirmed Professor Cass Sunstein to be Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, on September 10, 2009 (see New York Times). He was approved 57 to 40, with the vast majority of his support coming from Democrats. The roll call is available here.
Our blog aims to help inform scholars and practitioners of administrative law about new developments in adminstrative law in a wide range of countries and institutions.
Akis Psygkas is organizing the posts. He will be monitoring the press and the academic literature to let subscribers know about important developments and to provide links to documents, court decisions, and recent scholarship. However, he cannot do that alone. We need your help both to locate material and to post comments.
We are happy to post entries in languages other than English and links to non-English materials. The goal is for this to be a truly comparative law effort so we hope that even posts about the US will prompt some of you to respond with information about related developments elsewhere.
We look forward to hearing from you.
All the best, Susan Rose-Ackerman