Deadlines in administrative law

University of Pennsylvania Law Review

Volumn 156, Issue 4, 2008, Pages 923-990

  Gersen, Jacob E ^a   O'Connell, Anne Joseph ^b  

^a UNIVERSITY OF CHICAGO   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 44649202358     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (248)

1. See Steven Breker-Cooper, The Appointments Clause and the Removal Power: Theory and Séance, 60 TENN. L. REV. 841, 843-44 (1993);
2. Saikrishna Prakash, Removal and Tenure in Office, 92 VA. L. REV. 1779, 1783-85 (2006);
3. see also Anne Joseph O'Connell, Qualifications (Dec. 14, 2007) (unpublished manuscript, on file with authors) (examining qualification requirements for appointed offices in administrative agencies).
4. For overviews of the delegation literature, see generally DAVID EPSTEIN & SHARYN O'HALLORAN, DELEGATING POWERS: A TRANSACTION COST POLITICS APPROACH TO POLICY MAKING UNDER SEPARATE POWERS (1999) (developing and testing a theory of variation in delegation to agencies),
5. and D. RODERICK KIEWIET & MATHEW D. MCCUBBINS, THE LOGIC OF DELEGATION: CONGRESSIONAL PARTIES AND THE APPROPRIATIONS PROCESS (1991) (exploring the history and theory of delegation and delegation mechanisms).
6. On bureaucratic drift particularly, see Mathew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431, 439 (1989) (discussing how agencies can "shift . . . policy outcome[s] away from the legislative intent").
7. See Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1277-80 (2006) (discussing the effect of prompt letters on agency action);
8. Robert W. Hahn & Robert E. Litan, Counting Regulatory Benefits and Costs: Lessons for the US and Europe, 8 J. INT'L ECON. L. 473, 476 (2005) (noting the use of prompt letters to spur regulation in new areas);
9. Robert W. Hahn & Mary Beth Muething, The Grand Experiment in Regulatory Reporting, 55 ADMIN. L. REV. 607, 622, 624 (2003) (describing the use of prompt letters to encourage cost-efficient regulation);
10. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2290-99 (2001) (discussing presidential directives of agency action).
11. See, e.g., Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385, 1428-36 (1992) (describing incidents of regulatory delay as a result of OMB review). For a recent discussion, with citations to the literature, see Bagley & Revesz, supra note 3, at 1268-70.
12. See generally Harold H. Bruff & Ernest Gellhorn, Congressional Control of Administrative Regulation: A Study of Legislative Vetoes, 90 HARV. L. REV. 1369 (1977) (discussing the effect of the legislative veto on the rulemaking process and the relationships between the branches of government);
13. Michael Herz, The Legislative Veto in Times of Political Reversal: Chadha and the 104th Congress, 14 CONST. COMMENT. 319 (1997) (discussing Chadha and the legislative veto in light of changes in the political composition of Congress);
14. Robert F. Nagel, The Legislative Veto, the Constitution, and the Courts, 3 CONST. COMMENT. 61 (1986) (challenging the constitutional basis of Chadha).
15. See Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 SUP. CT. REV. 201 (2007) (discussing the use of agency jurisdiction as a mechanism for congressional control of agencies).
16. For examples of the scant research on the impact of deadlines, see Alden F. Abbott, The Case Against Federal Statutory and Judicial Deadlines: A Cost-Benefit Appraisal, 39 ADMIN. L. REV. 171 (1987) [hereinafter Abbott, Cost-Benefit Appraisal];
17. Alden F. Abbott, Case Studies on the Costs of Federal Statutory and Judicial Deadlines, 39 ADMIN. L. REV. 467 (1987) [hereinafter Abbott, Case Studies];
18. Eric Biber, The Importance of Resource Allocation in Administrative Law: A Case Study of Judicial Review of Agency Inaction Under the Administrative Procedure Act, 60 ADMIN. L. REV. (forthcoming 2008) (manuscript at 28-36), available at http://ssrn.com/abstract=981941;
19. Gregory L. Ogden, Reducing Administrative Delay: Timeliness Standards, Judicial Review of Agency Procedures, Procedural Reform, and Legislative Oversight, 4 U. DAYTON. L. REV. 71 (1979);
20. Richard J. Pierce, Jr., Judicial Review of Agency Actions in a Period of Diminishing Agency Resources, 49 ADMIN. L. REV. 61 (1997);
21. and Jason Webb Yackee & Susan Webb Yackee, Is Federal Rulemaking "Ossified"? The Effects on Congressional, Presidential, and Judicial Oversight on the Agency Policymaking Process (Jan. 3, 2008) (unpublished manuscript, on file with authors). The study of deadlines is related to the study of statutory hammers.
22. See, e.g., George A. Bermann, Administrative Delay and Its Control, 30 AM. J. COMP. L. 473 (Supp. 1982);
23. M. Elizabeth Magill, Congressional Control over Agency Rulemaking: The Nutrition Labeling and Education Act's Hammer Provisions, 50 FOOD & DRUG L.J. 149 (1995).
24. See generally Envtl. & Energy Study Inst. & Envtl. Law Inst., Statutory Deadlines in Environmental Legislation: Necessary but Need Improvement (Sept. 1985) (unpublished manuscript, on file with authors).
25. The available evidence is almost exclusively focused on environmental policy, which is important, but far from the only substantive context for deadlines.
26. See generally Jacob E. Gersen & Eric A. Posner, Timing Rules and Legal Institutions, 121 HARV. L. REV. 543, 584-88 (2007) (arguing that by regulating the timing of regulation, Congress can affect its content).
27. See Philippe Aghion & Jean Tirole, Formal and Real Authority in Organizations, 105 J. POL. ECON. 1 (1997) (analyzing authority delegated to agencies as a function of information distribution);
28. Kathleen Bawn, Political Control Versus Expertise: Congressional Choices About Administrative Procedures, 89 AM. POL. SCI. REV. 62 (1995) (analyzing the tradeoff between political control and agency expertise);
29. Jonathan Bendor & Adam Meirowitz, Spatial Models of Delegation, 98 AM. POL. SCI. REV. 293 (2004) (extending delegation models to consider costs of information gathering);
30. Sean Gailmard, Discretion Rather than Rules: Choice of Instruments To Constrain Bureaucratic Policy-Making, POL. ANALYSIS (forthcoming 2008) (comparing "menu laws" (rules) and "action restrictions" (discretion) as tools of control in delegation);
31. Matthew C. Stephenson, Bureaucratic Decision Costs and Endogenous Agency Expertise, 23 J.L. ECON. & ORG. 469 (2007) (analyzing the impact of decision costs on the development of agency expertise);
32. Steven Callander, A Theory of Policy Expertise (June 11, 2007) (unpublished manuscript, on file with authors) (predicting delegation of complex matters to agencies expert in the policymaking process).
33. See generally Mathew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987); McCubbins et al., supra note 2;
34. Emerson H. Tiller, Controlling Policy by Controlling Process: Judicial Influence on Regulatory Decision Making, 14 J.L. ECON. & ORG. 114 (1998).
35. See John F. Duffy, Administrative Common Law in Judicial Review, 77 TEX. L. REV. 113 (1998);
36. Richard W. Murphy, Hunters for Administrative Common Law, 58 ADMIN. L. REV. 917 (2006).
37. See, e.g., Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2111-14 (1990).
38. There is a small literature on the timing of judicial review and its impact on administrative law. Compare JERRY L. MASHAW & DAVID L. HARFST, THE STRUGGLE FOR AUTO SAFETY 69-83 (1990) (lamenting that statutory deadlines hindered rulemaking by NHTSA in the 1960s and 1970s),
39. and Jerry L. Mashaw, Improving the Environment of Agency Rulemaking: An Essay on Management, Games, and Accountability, 57 LAW & CONTEMP. PROBS., Spring 1994, at 185, 233-38 (criticizing the presumptive availability of preenforcement judicial review),
40. with Mark Seidenfeld, Playing Games with the Timing of Judicial Review: An Evaluation of Proposals To Restrict Pre-Enforcement Review of Agency Rules, 58 OHIO ST. L.J. 85 (1997) (arguing that delaying judicial review of agency rules until an agency brings enforcement proceedings will typically be inefficient).
41. Compare McGarity, supra note 4, at 1387-88 (describing the factors that contribute to the increasingly long rulemaking process), and Richard J. Pierce, Jr., Seven Ways To Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 65 (1995) (describing rulemaking as an "extraordinarily lengthy, complicated, and expensive process"),
42. with William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability To Achieve Regulatory Goals Through Informal Rulemaking?, 94 NW. U. L. REV. 393, 445 (2000) (arguing that there is no ongoing dilatory process of ossification),
43. and Peter L. Strauss, The Rulemaking Continuum, 41 DUKE L.J. 1463, 1470 (1992) ("[I]nformal rulemaking, generally, is not ossified.").
44. See STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE 57-59 (1993); MASHAW & HARFST, supra note 15, at 95-103;
45. Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 TEX. L. REV. 525 (1997); McGarity, supra note 4.
46. See generally Biber, supra note 7 (arguing that the potential ramifications of agency inaction justify judicial review); Eric Biber, Two Sides of the Same Coin: Judicial Review Under APA Sections 706(1) and 706(2), 26 VA. ENVTL. L.J. (forthcoming 2008), available at http://ssrn.com/abstract=981961 (exploring doctrine concerning agency inaction);
47. Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. REV. 1657 (2004) (explaining how political accountability without judicial oversight encourages agency inaction).
48. See, e.g., Abbott, Case Studies, supra note 7; Magill, supra note 7.
49. The few papers of which we are aware focus either on case studies, see, e.g., Abbott, Case Studies, supra note 7, or on a single agency, see, e.g., Magill, supra note 7; Daniel Carpenter et al., Deadline Effects in Regulatory Drug Review: A Methodological and Empirical Analysis (Mar. 2007) (unpublished manuscript, on file with authors) (discussing the effects of timing goals imposed on the Food and Drug Administration by the Prescription Drug User-Fee Act). We recently learned about an independent empirical study of the duration of rulemaking using data similar to ours that briefly considers the effect of statutory and judicial deadlines but that focuses on other constraints on agencies. See Yackee & Yackee, supra note 7.
50. See Magill, supra note 7, at 186-89 (criticizing the constraints on agency action imposed by a hammer). For a recent variant on the theme, see Kenneth A. Bamberger, Provisional Precedent: Protecting Flexibility in Administrative Policymaking, 77 N.Y.U. L. REV. 1272, 1274 (2002). See generally Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 544 (1978) (discussing the "very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure").
51. See SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) ("In performing its important functions . . . an administrative agency must be equipped to act either by general rule or by individual order."); Kevin M. Stack, The Constitutional Foundations of Chenery, 116 YALE L.J. 952, 1000-01 (2007).
52. See, e.g., United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 240 (1973).
53. See Heckler v. Chaney, 470 U.S. 821, 831 (1985) ("This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion.").
54. See Biber, supra note 7, at 11-15.
55. For a more general overview and discussion, see Anne Joseph O'Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Administrative State, 94 VA. L. REV. (forthcoming June 2008).
56. See infra Part III.
57. See infra Part III.
58. This simple model assumes that Congress cares about the substance of the regulatory system.
59. See, e.g., National Labor Relations Act, 29 U.S.C. §§ 151-169 (2000).
60. See United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 241 (1973).
61. Compare City of W. Chi. v. U.S. Nuclear Regulatory Comm'n, 701 F.2d 632, 641 (7th Cir. 1983) (permitting informal adjudication), with Union of Concerned Scientists v. U.S. Nuclear Regulatory Comm'n, 735 F.2d 1437, 1444 n.12 (D.C. Cir. 1984) (suggesting that the statute required formal adjudication).
62. See 42 U.S.C. § 4332(2)(C) (2000) (requiring a detailed statement considering the environmental impact of major federal actions); see also Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 551 (1978) (delineating the scope of the statutory requirement to consider alternatives to proposed actions). See generally Celia Campbell-Mohn & John S. Applegate, Learning from NEPA: New Guidelines for Responsible Risk Legislation, 23 HARV. ENVTL. L. REV. 93 (1999) (describing the scope of NEPA's requirements).
63. See Elizabeth Garrett & Adrian Vermeule, Transparency in the U.S. Budget Process, in FISCAL CHALLENGES: AN INTERDISCIPLINARY APPROACH TO BUDGET POLICY 68, 72 (Elizabeth Garrett et al. eds., 2008) (analyzing the impact of sunshine statutes on the budget process);
64. Anne Joseph O'Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 CAL. L. REV. 1655, 1717-27 (2006) (analyzing the costs and benefits of transparency for democratic legitimacy and agency effectiveness).
65. See, e.g., Fla. E. Coast Ry., 410 U.S. at 230-32 (describing authority granted to the Interstate Commerce Commission to regulate freight car rates).
66. See O'Connell, supra note 1, at 14-22.
67. But see EPSTEIN & O'HALLORAN, supra note 2, at 14-33 (arguing that the politics of temporal delay insulate bureaucrats from external, inexpert control).
68. See Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts, 119 HARV. L. REV. 1036 (2006) (comparing the consequences of delegating statutory interpretation authority to agencies rather than courts).
69. See, e.g., William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J.L. & ECON. 875 (1975) (exploring whether independent judges undermine legislative policy choices).
70. See Gersen & Posner, supra note 10, at 579-82 (arguing that courts have more difficulty with substantive review than with the enforcement of timing rules because of doctrine requiring judges to "determine whether a state interest is 'compelling enough' or whether a statute is 'related enough,' for example, to interstate commerce").
71. See Frank B. Cross, Pragmatic Pathologies of Judicial Review of Administrative Rulemaking, 78 N.C. L. REV. 1013, 1047 (2000) (describing the "sham regulations" resulting from judicial intervention in the Environmental Protection Agency's regulation of radionuclides); McGarity, supra note 4, at 1456 ("[L]imited agency resources may be expended in litigation over deadlines rather than in writing regulations."). It is possible, however, that deadlines make it easier for an agency to act, functioning perhaps as a necessary credible commitment device. Cf. O'Connell, supra note 26, at 17 n.82 (explaining that the transition period between an end-of-term election and a new President's inauguration can be a "needed credible commitment device" for agencies to promulgate rules).
72. Carpenter et al., supra note 20, at 21.
73. See id.
74. Cf. Biber, supra note 7 (describing judicial review of agency choices between deadlines and resource allocation); Pierce, supra note 7, at 77-84 (discussing the difficulties that agencies face when Congress confuses their lack of resources with unproductiveness and imposes temporal restrictions).
75. The importance of distinguishing legislative and nonlegislative rules has been the subject of scholarly debate. See, e.g., William Funk, Legislating for Nonlegislative Rules, 56 ADMIN. L. REV. 1023 (2004);
76. William Funk, When Is a "Rule" a Regulation? Marking a Clear Line Between Nonlegislative Rules and Legislative Rules, 54 ADMIN. L. REV. 659 (2002);
77. John F. Manning, Nonlegislative Rules, 72 GEO. WASH. L. REV. 893, 914-27 (2004);
78. see also Michael Asimow, Public Participation in the Adoption of Interpretive Rules and Policy Statements, 75 MICH. L. REV. 520, 542 (1977);
79. Jacob E. Gersen, Legislative Rules Revisited, 74 U. CHI. L. REV. 1705 (2007);
80. Kevin W. Saunders, Interpretative Rules with Legislative Effect: An Analysis and a Proposal for Public Participation, 1986 DUKE L.J. 346, 352.
81. See infra note 128.
82. See infra Part III.
83. See generally JOHN H. ALDRICH, WHY PARTIES? THE ORIGIN AND TRANSFORMATION OF POLITICAL PARTIES IN AMERICA (1995).
84. Cf. Keith Krehbiel, Are Congressional Committees Composed of Preference Outliers?, 84 AM. POL. SCI. REV. 149, 155 (1990) (finding considerable ideological variation in congressional committees);
85. John Londregan & James M. Snyder, Jr., Comparing Committee and Floor Preferences, 19 LEGIS. STUD. Q. 233, 262 (1994) (finding that at least one-third of House committees are preference outliers).
86. See Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs, 75 VA. L. REV. 499, 503-04 (1989) (addressing the problems of legislative drift and how legislatures can impose costs and rules to influence future coalitions);
87. Kenneth A. Shepsle, Bureaucratic Drift, Coalitional Drift, and Time Consistency: A Comment on Macey, 8 J.L. ECON. & ORG. 111, 116 (1992) (supporting a judicial role in reducing legislative drift);
88. see also J.R. DeShazo & Jody Freeman, The Congressional Competition To Control Delegated Power, 81 TEX. L. REV. 1443, 1457-59 (2003) (arguing that scholars too often forget about legislative drift and that agencies rarely respond to a "consistent voice" in Congress); O'Connell, supra note 26, at 52-53 (presenting empirical evidence of the unique demands placed on agencies as a result of legislative drift).
89. See Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165, 173-76 (1984).
90. To the extent that deadlines are set and terminate during the same Congress, the timeframe for agency action is very short. Deadlines of this sort, say six to fourteen months, are possible. However, short deadlines may cause courts to sympathize with agency arguments that there is good cause to avoid notice and comment procedures. The short deadline provides political benefits, but also comes with some procedural costs. In part, oversight hearings and more careful monitoring of agency action can compensate for these costs.
91. Cf. O'Connell, supra note 26, at 53-56 (presenting the implications of midnight and crack-of-dawn congressional action).
92. See GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 5-7 (1982).
93. See, e.g., Abbott, Case Studies, supra note 7 (using case studies of eleven federal agencies to show the ineffectiveness of administrative deadlines); cf. Amy Whritenour Ando, Waiting To Be Protected Under the Endangered Species Act: The Political Economy of Regulatory Delay, 42 J.L. & ECON. 29 (1999) (finding that public pressure plays a major role in the length of agency delays);
94. Daniel P. Carpenter, Groups, the Media, Agency Waiting Costs, and FDA Drug Approval, 46 AM. J. POL. SCI. 490 (2002) (analyzing the effect of political influence on FDA delays);
95. Mary K. Olson, Managing Delegation in the FDA: Reducing Delay in New-Drug Review, 29 J. HEALTH POL. POL'Y & L. 397 (2004) (examining whether budgetary constraints or revised procedures were responsible for the increased speed of new-drug review by the FDA).
96. This Article is limited to agency rulemaking. Agencies also face deadlines for adjudications, policy statements, reports, and other actions.
97. The data are drawn from agency semiannual reports from April 1983 to October 2003 in the Unified Agenda of Federal Regulatory and Deregulatory Actions, which is published in the Federal Register. For a detailed description of the data and their advantages and limitations, see O'Connell, supra note 26, at 22-25 & nn.99-108. The Unified Agenda reports represent a successive picture of agency activity; therefore, there is considerable overlap among the semiannual reports. In other words, a rule may appear multiple times in various editions of the Unified Agenda: the first appearance may reflect the Notice of Proposed Rulemaking (NPRM), the second may indicate the end of the comment period, and the third may describe the final promulgation of the rule. Each appearance typically includes all previously disclosed information. Thus, it is critical to remove duplicate entries in the analysis so that particular rulemaking actions, such as an NPRM, are counted only once. For most of the analysis presented here, where there are multiple entries using the same Regulation Identifier Number (RIN) (a unique identifier), only the most recent Unified Agenda report entry was retained for each RIN. This means, however, that if an earlier entry for a RIN contained information on a deadline but a later entry for that same RIN did not, that deadline information would not be captured in the data. For some of the analysis (e.g., Tables 1-2 and Figures 1-2), if there was no deadline reported, the most recent Unified Agenda entry was retained for each RIN; if there was a deadline reported, however, the most recent of all Unified Agenda entries with the same RIN and deadline information (deadline type, deadline stage, and deadline date) was retained. For this subset of the analysis, deadline information therefore is not lost. In order to pair deadline information with other attributes of regulatory actions, the more crude duplication rule (i.e., the deletion of all previous entries of the same RIN) had to be applied. Thus, for most of the analysis (other than Tables 1-2 and Figures 1-2), we are undercounting the presence of deadlines. Agencies did not report on deadlines until the 1988 Unified Agenda. The information reported starting in 1988, however, contains some data on deadlines prior to 1988. Legislative and judicial deadlines are primarily classified in the data files under one of three categories: commencement of action, completion of action, and other. The "commencement" category usually refers to deadlines for the issuance of NPRMs. The "completion" category includes mandates for completed rules (including interim final rules) and other final agency actions (including announcements). The "other" category includes such items as Advance Notices of Proposed Rulemaking. In addition to classifying the type of deadline, agencies often also report the date of the deadline. Some agencies, however, do not provide dates for some of the deadlines they report. The Department of Commerce, for example, lists a significant number of deadlines, but does not report dates for many of those deadlines.
98. The Table contains deadline counts where the agencies reported specific dates (including month, day, and year). Because agencies often report deadlines without specific dates, these numbers do not reflect the full scope of actual deadlines.
99. We use three common tests: (1) Pearson correlation with a one-tailed test for statistical significance, (2) Kendall's tau B, and (3) Spearman's rho. The Pearson statistic is technically inappropriate, given its assumption of normality in the underlying distribution, but we nonetheless report it, as it is a commonly reported - and misreported - statistic.
100. To see why this could produce a positive correlation coefficient, note that the absence of a statutory deadline is generally associated with the absence of a judicial deadline. Thus, the two variables are positively correlated despite the fact that only 0.25% of unique RINs are associated with both judicial and statutory deadlines.
101. The law defines "significant," or "major," rules as those that have at least a $100 million annual effect on the economy, or otherwise "adversely affect [it] in a material way." Exec. Order No. 12,866, § 3(f), 58 Fed. Reg. 51,735, 51,738 (Sept. 30, 1993), amended by Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 18, 2007). In the database created from the Unified Agenda reports, actions were deemed significant if Priority Code = 10 (Economically Significant) or 20 (Otherwise Significant), or if Major = Yes. See O'Connell, supra note 26, at 2 n.8, 62. For this analysis, we looked at reports from April 1995 to October 2003 because information on significance was not routinely reported until 1995.
102. This difference in means is significant in an independent samples t-test (RINs with any deadline (with and without an actual date) versus RINs with no deadline) at p < 0.0001. The test does not assume equal variances between the two samples, as that assumption is rejected by Levene's Test for Equality of Variances with F = 504.922 (p < 0.0001).
103. All of the listed associations are statistically significant (p < 0.001), and although we use several different estimators to calculate the correlations, the value never varies across estimates. Agencies did not report on deadlines in the Unified Agenda until 1988. To compare the particular attributes of regulatory actions with the presence of deadlines, we had to restrict ourselves to data from Unified Agenda reports after both began to be reported, which was 1988 for government characteristics and 1995 for unfunded mandates.
104. "Direct final rules" become effective some time after publication in the Federal Register unless the agency receives "adverse" comments. "Interim final rules" take effect immediately upon publication but the agencies receive comments on them after the fact. Interim final rules are supposed to be used when the agency has good cause to enact rules immediately, such as in emergency situations. U.S. GEN. ACCOUNTING OFFICE, GAO/GGD-98-126, FEDERAL RULEMAKING: AGENCIES OFTEN PUBLISHED FINAL ACTIONS WITHOUT PROPOSED RULES 6-7 (1998);
105. see also Michael Asimow, Public Participation in the Adoption of Temporary Tax Regulations, 44 TAX LAW. 343, 343-44 (1991) (discussing the use of interim final rules in the Treasury Department);
106. Lars Noah, Doubts About Direct Final Rulemaking, 51 ADMIN. L. REV. 401, 401-02 (1999) (investigating the tendency to evade procedural requirements through direct final rulemaking).
107. On direct final rules, see Ronald M. Levin, Direct Final Rulemaking, 64 GEO. WASH. L. REV. 1 (1995) (advocating the broad use of direct final rules in noncontroversial situations).
108. A t-test of the difference in means of interim final rules in the two samples (RINs with any deadline (with and without an actual date) and RINs with no deadline) is significant at p < 0.0001. The test does not assume equal variances between the two samples, as that assumption is rejected by Levene's Test for Equality of Variances with F = 293.420 (p < 0.0001).
109. The difference is significant. A t-test of the difference in means of direct final rules in the two samples (RINs with any deadline (with and without an actual date) and RINs with no deadline) is significant at p < 0.0001. The test does not assume equal variances between the two samples, as that assumption is rejected by Levene's Test for Equality of Variances with F = 48.105 (p < 0.0001).
110. This is not to say that all interim or direct final rules are of low quality. If, however, notice and comment is taken as the appropriate baseline, downward procedural deviations from that norm will be more likely to produce errors.
111. See generally Mariano-Florentino Cuéllar, Rethinking Regulatory Democracy, 57 ADMIN. L. REV. 411 (2005) (emphasizing the importance of allowing for full public comment before issuing rules).
112. The two variables are significantly correlated, with a simple correlation coefficient between 0.043 and 0.050 (depending on the estimator). See infra Table 10. The "comments" variable's value increases by one for a new comment period, a reopened comment period, or an extended comment period.
113. See supra Part II.A.4.
114. The data contain only the number of comment periods, not the number of comments. The mean number of comment periods for all significant regulatory actions with at least one deadline is 0.408, and the mean number of comment periods for significant regulatory actions without a deadline is 0.410; the difference is not statistically significant. However, there is a much larger, statistically significant difference if we restrict the data to significant regulatory actions with an NPRM with an actual date. In that case, the mean number of comment periods for significant actions with at least one deadline is 0.625, and the mean number of comment periods for such actions without a deadline is 0.815. Not every significant action actually has a comment period; for instance, an agency could issue a significant regulation as an interim final rule with no previous comment periods. Also, agencies may not report comment periods to the Unified Agenda.
115. A t-test of the difference in means of comment periods in the two samples (RINs with any deadline (with and without an actual date) and RINs with no deadline) is significant at p < 0.0001. The test does not assume equal variances between the two samples, as that assumption is rejected by Levene's Test for Equality of Variances with F = 196.241 (p < 0.0001).
116. As an indicator of duration, we compute the time between the initial NPRM and a traditional final rule, final action, interim final rule, or direct final rule for RINs reporting such actions with actual dates. In the database created from the Unified Agenda reports, actions were counted as a final rule or final action if the rulemaking action listed in the Timetable field was coded as 330 (Final Rule) or 600 (Final Action), respectively; actions were counted as an interim final rule or a direct final rule if the rulemaking action listed in the Timetable field was coded as 50 (Interim Final Rule) or 325 (Direct Final Rule), respectively. See O'Connell, supra note 26, at 62. For this analysis, we looked only at reports to the Unified Agenda from April 1995 to October 2003 and retained RINs only if they had an NPRM with an actual date reported. Agencies did not report on the significance of actions, a key explanatory variable, until 1995.
117. The confidence intervals around these means do not overlap.
118. For this analysis, we looked at reports to the Unified Agenda from April 1995 to October 2003, and from April 1988 to October 2003, and retained RINs only if they had an NPRM with an actual date reported. Agencies did not report on the significance of actions, a key explanatory variable, until 1995, so significance of the regulatory action can be included as a covariate in only the first set of data. Both sets of data contain information about regulatory actions that occurred in earlier years, including some actions from many years earlier. It is conceivable that these much earlier observations could produce selection bias in our regression results because they represent only a small portion of regulatory actions in those years. We ran the various regression models on only the more recent regulatory actions (after 1990, 1993, and 1995) and obtained similar results. Thus, for the analysis described here, we retained all the observations obtained from the two subsets of reports, irrespective of the dates of the regulatory actions. Independent from our research, Yackee and Yackee also have used a Cox Proportional Hazard model (but without the competing risks framework) to examine the duration of particular regulatory actions reported in the Unified Agenda. See Yackee & Yackee, supra note 7, at 17 (finding that actions governed by statutory or judicial deadlines take less time to complete).
119. For good statistical sources on hazard analysis, see WILLIAM H. GREENE, ECONOMETRIC ANALYSIS 715-27 (2d ed. 1993),
120. and Janet M. Box-Steffensmeier & Bradford S. Jones, Time Is of the Essence: Event History Models in Political Science, 41 AM. J. POL. SCI. 1414 (1997).
121. 0(t) is the baseline hazard rate. Id. at 974. Due to the model's partial likelihood estimation, the baseline hazard function is estimated nonparametrically. Box-Steffensmeier & Jones, supra note 77, at 1432-33. The competing risks aspect of the CPH model accounts for the fact that an NPRM in the Unified Agenda can result in one of several ultimate outcomes: a traditional final rule or action, an interim final rule, a direct final rule, or a deletion or withdrawal. To estimate the current model, we compress these outcomes into two categories: final rule/action (traditional, interim, or direct) and deletion/withdrawal. In the 1988-2003 data, 10,967 RINs show a traditional final rule or action as the ultimate outcome; 79 RINs show an interim final rule as the ultimate outcome; 4 RINs show a direct final rule as the ultimate outcome; 1316 RINs show deletion or withdrawal as the ultimate outcome; and 2511 RINs with an NPRM show none of these outcomes. In the 1995-2003 data, 5972 RINs show a traditional final rule or action as the ultimate outcome; 64 RINs show an interim final rule as the ultimate outcome; 4 RINs show a direct final rule as the ultimate outcome; 866 RINs show deletion or withdrawal as the ultimate outcome; and 2059 RINs with an NPRM show no outcome. In each subset of the data, the final category of RINs is treated as censored. In the 1995-2003 data, which we focus on, the average duration for final rules/actions (with and without deadlines, significant and nonsignificant) was 511.90 days (standard error = 7.96 days); for interim final rules, the average duration was 696.75 days (standard error = 121.51); for direct final rules, it was 1219.25 days (standard error = 263.05); and for withdrawals, it was 1541.07 days (standard error = 46.63). This analysis looks at ultimate actions for a particular RIN. Earlier analysis on interim and direct final rulemaking considered all reported actions for a RIN. Many competing risks hazard models stratify the data by outcome types, permitting the baseline hazard function to
122. Table 13 presents estimates for the 1995-2003 data and for the 1988-2003 data. We tested the competing risks model's key assumption that the proportionality of hazards across cases does not vary over time within each stratum. Because the model incorporates competing risks, standard tests of the proportionality assumption in commercial statistical packages (for example, the "stphtest" command in Stata) are not appropriate. Instead, we plotted the observed and predicted survival probabilities for each of the competing risks (rule completions and rule withdrawals); if the observed and predicted probabilities are close, the model's assumption is supported. The probabilities are very close for rule completions over all values of the duration variable, and close for rule withdrawals for shorter durations (but wider for longer durations), confirming that the key assumption holds for at least the first stratum and partially for the second. Although we think the CPH model is most appropriate in this setting, we have also estimated a series of alternative models. The simplest, and least appropriate, is a simple ordinary least squares regression equation of duration of agency actions (from NPRM to final rule, final action, interim final rule, or direct final rule) on the set of explanatory variables (excluding the interaction terms). A Poisson regression is somewhat more appropriate because of the distribution of the dependent variable. We also estimated other duration models using both the Weibull distribution and the exponential distribution, as well as a CPH model without the competing risks specification. The main directional results (presence of deadline, significance of action, change in Congress, and change in the White House) are robust to all these alternative specifications. Results are available from the authors.
123. This result also holds when separate variables are included for statutory and judicial deadlines. The existence of a deadline, however, is not significant when that process ends in withdrawal of an NPRM. This result may appear surprising at first, but it also has an intuitive explanation. Deadlines are supposed to force agencies to act - to enact some sort of regulation. To fail to complete a rulemaking, or to withdraw a regulatory action, in the face of a deadline likely is highly unusual. See, e.g., Steven J. Groseclose, Reinventing the Regulatory Agenda: Conclusions from an Empirical Study of EPA's Clean Air Act Rulemaking Progress Projections, 53 MD. L. REV. 521, 562 (1994) (finding that the EPA was less likely to withdraw a rulemaking with a deadline). An agency would not undertake withdrawal lightly and thus may take more time before choosing that outcome.
124. This effect may be biased downward. To the extent that agencies may set internal deadlines for particular rulemakings in the absence of statutory deadlines, non-deadline rulemaking processes will have a shorter duration than otherwise. In addition, to the extent that Congress signals to the agency that important rulemakings should be finished promptly without the imposition of deadlines, nondeadline actions will take less time. Cf. Cornelius M. Kerwin & Scott R. Furlong, Time and Rulemaking: An Empirical Test of Theory, 2 J. PUB. ADMIN. RES. & THEORY 113, 129, 132 (1992) (finding that actions governed by judicial deadlines take much longer to complete than those not governed by judicial deadlines, in part because of prior agency delay).
125. This measure is obtained by calculating the expected hazard ratio with the deadline covariate set to one and all other covariates set to their means, and calculating the expected hazard ratio with the deadline covariate set to zero and all other covariates set to their means. These ratios are, respectively, 0.29159 and 0.21221; the odds reported in the text are calculated by taking their ratio.
126. For both CPH models in Table 13 (1995-2003 data and 1988-2003 data), the regulatory process for actions that ultimately end in withdrawal or deletion appears to take longer if started under united government (though the result is not significant for the first model). For the 1995-2003 data (where the model controls for the significance of the action), the process is also longer if it ends in completion of a rule, whereas, for the 1988-2003 data (where the model does not control for the significance of the action), the process is shorter.
127. Although agencies make quicker decisions if they confront deadlines, all else being equal, they often miss the deadlines themselves. In the 1988-2003 data, of the 226 unique rulemakings for which specific dates were available for the statutory deadline for an NPRM to be issued and for the actual issuance of the NPRM, the agency met the deadline in only 26.99% of the cases. In the 1995-2003 data, for the subset of 49 significant rulemakings, the agency satisfied the NPRM statutory deadline in 12.24% of the cases. The mean difference in days between the NPRM deadline and the actual NPRM issuance was 169.67 days (past the deadline) (standard error = 30.36); for significant actions, the mean difference was 261.24 days (standard error = 60.29). Of the 1341 unique rulemakings with specific dates for a statutory deadline for completed regulatory action and for the actual issuance of a final action (final rule, action, interim final rule, or direct final rule), the agency met the deadline in only 18.94% of the cases. For the subset of 261 significant rulemakings, the agency satisfied the completion deadline in 21.46% of the cases. The mean difference in days between the completion deadline and the actual completion was 385.82 days (past the deadline) (standard error = 16.96); for significant actions, the mean difference was 508.26 days (standard error = 48.52). The EPA's pattern of missing statutory deadlines has been well documented. See U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-05-613, CLEAN AIR ACT: EPA HAS COMPLETED MOST OF THE ACTIONS REQUIRED BY THE 1990 AMENDMENTS, BUT MANY WERE COMPLETED LATE 7-12 & tbl.9 (2005) (finding that only 37 of 338 statutory deadlines were met on time);
128. U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-06-669, CLEAN AIR ACT: EPA SHOULD IMPROVE THE MANAGEMENT OF ITS AIR TOXICS PROGRAM 15-20 (2006) (finding that the EPA issued most air toxics requirements late); Groseclose, supra note 80, at 560-64 (noting that the EPA was less likely to miss court deadlines than statutory deadlines); Pierce, supra note 7, at 81-82 (noting that the EPA met only 20% of the Clean Air Act's statutory deadlines). In some respects, agencies seem better at meeting judicial deadlines. In the 1988-2003 data, of the 139 unique rulemakings for which specific dates were available for the judicial deadline for an NPRM to be issued and for the actual issuance of the NPRM, the agency met the deadline in only 15.11% of the cases. In the 1995-2003 data, for the subset of 68 significant rulemakings, the agency satisfied the NPRM judicial deadline in 11.76% of the cases. But agencies did not delay as long. The mean difference in days between the NPRM deadline and the actual NPRM issuance was 20.85 days (before the deadline) (standard error = 23.01); for significant actions, the mean difference was 11.22 days (past the deadline) (standard error = 20.89). Of the 225 unique rulemakings with specific dates of a judicial deadline for completed regulatory action and for the actual issuance of a final action (i.e., final rule, final action, interim final rule, or direct final rule), the agency met the deadline in only 14.22% of the cases. For the subset of 79 significant rulemakings, the agency satisfied the completion deadline in 11.39% of the cases. The mean difference in days between the completion deadline and the actual completion was 55.54 days (past the deadline) (standard error = 9.41); for significant actions, the mean difference was 54.37 (standard error = 25.38).
129. 467 U.S. 837 (1984).
130. 5 U.S.C. § 706(1) (2000); see also William D. Araiza, In Praise of a Skeletal APA: Norton v. Southern Utah Wilderness Alliance, Judicial Remedies for Agency Inaction, and the Questionable Value of Amending the APA, 56 ADMIN. L. REV. 979, 993 (2004) ("[C]ourts should take care to respect agency decisionmaking processes when considering the timing of review, the liability determination . . . and the remedy."); Biber, supra note 7, at 4-5 (noting the Supreme Court's chilly reception to attempts by private parties to compel agency action); Bressman, supra note 18, at 1658 (discussing the Supreme Court's reluctance to permit judicial review of agency inaction).
131. 542 U.S. 55, 64 (2004).
132. Id. at 65-72.
133. Id. at 71-72.
134. In Sierra Club v. Thomas, the D.C. Circuit explained how a deadline is almost always necessary to create a nondiscretionary duty: Although a date-certain deadline therefore may or may not be nondiscretionary, it is highly improbable that a deadline will ever be nondiscretionary, i.e. clear-cut, if it exists only by reason of an inference drawn from the overall statutory framework. . . . The inferrable deadline is likely to impose such a discretionary duty because it rests, at bottom, upon a statutory framework that will almost necessarily place competing demands upon the agency's time and resources. 828 F.2d 783, 791 (D.C. Cir. 1987) (footnote omitted). The court continued, "In the absence of a readily-ascertainable deadline, therefore, it will be almost impossible to conclude that Congress accords a particular agency action such high priority as to impose upon the agency a 'categorical[] mandat[e]' that deprives it of all discretion over the timing of its work." Id. (alterations in original) (footnote omitted); cf. Raymond Proffitt Found, v. U.S. EPA, 930 F. Supp. 1088, 1099-1100 (E.D. Pa. 1996) (holding that a deadline may be sufficient, but is not necessary, to show a nondiscretionary duty).
135. 42 U.S.C. § 7604(a)(2) (2000).
136. See, e.g., Envtl. Def. v. Leavitt, 329 F. Supp. 2d 55, 64 (D.D.C. 2004); Natural Res. Def. Council, Inc. v. U.S. EPA, 797 F. Supp. 194, 196 (E.D.N.Y. 1992); Sierra Club v. Ruckelshaus, 602 F. Supp. 892, 903-04 (N.D. Cal. 1984).
137. 33 U.S.C. § 1365(a)(2) (2000).
138. See, e.g., Defenders of Wildlife v. Browner, 888 F. Supp. 1005, 1008 (D. Ariz. 1995).
139. Biber, supra note 7, at 29.
140. In Center for Biological Diversity v. Hamilton, the Eleventh Circuit ruled that environmental groups could not bring a lawsuit to mandate that the Secretary of Interior designate a critical habitat for two endangered species of minnows under the Endangered Species Act because the Secretary's failure to act was not a continuing violation that extended beyond the statute of limitations. 453 F.3d 1331, 1335-36 (11th Cir. 2006). Generally, if the statute does not otherwise specify, parties have six years after a deadline has passed to challenge agency inaction. 28 U.S.C. § 2401(a) (2000); Ctr. for Biological Diversity, 453 F.3d at 1334.
141. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (requiring (a) "an injury in fact" that is (b) "fairly traceable" to the challenged action, and (c) that the injury is likely to be redressed by a favorable decision (internal quotation marks and alterations omitted)). See generally Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163 (1992) (criticizing Lujan's narrow view of standing). Proving standing under current precedent can be quite difficult, particularly when the agency's inaction does not concern regulation of the plaintiffs themselves. Lujan, 504 U.S. at 561-62; cf. Massachusetts v. EPA, 127 S. Ct. 1438, 1452-58 (2007) (holding that the plaintiffs had standing to challenge the EPA's refusal to regulate greenhouse gases).
142. Challenges to compel agency action will also typically become moot once the agency acts, even if far beyond the deadline, because after the agency acts, the court cannot "grant any relief beyond requiring steps that [the agency] has already taken." Sierra Club v. Browner, 130 F. Supp. 2d 78, 82 (D.D.C. 2001); see also Church of Scientology of Calif, v. United States, 506 U.S. 9, 12 (1992) ("[I]f an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, the appeal must be dismissed." (internal quotation marks omitted)).
143. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 65 (2004). The Court continued: For example, 47 U.S.C. § 251(d)(1), which required the Federal Communications Commission "to establish regulations to implement" interconnection requirements "[w]ithin 6 months" of the date of enactment of the Telecommunications Act of 1996, would have supported a judicial decree under the APA requiring the prompt issuance of regulations, but not a judicial decree setting forth the content of those regulations. Id. (alteration in original).
144. Challenges to agency inaction based on missed deadlines also present interesting jurisdictional questions as to what level of court should first hear such claims. These challenges are typically heard in district court, in contrast to claims involving agency action. See STEPHEN G. BREYER ET AL., ADMINISTRATIVE LAW AND REGULATORY POLICY 752-53 (6th ed. 2006). Many statutes, including the Clean Air Act and Clean Water Act, prescribe that parties must first try to set aside an agency action in the Court of Appeals. See 42 U.S.C. § 7607(b)(1) (2000) (prescribing appellate jurisdiction for challenges to particular agency actions under the Clean Air Act); 33 U.S.C. § 1369(b)(1) (2000) (setting similar jurisdictional rules for challenges under the Clean Water Act).
145. 537 U.S. 149, 155, 171-72 (2003).
146. Id. at 157.
147. Id. at 159 (quoting United States v. James Daniel Good Real Prop., 510 U.S. 43, 63 (1993)). The Peabody Court, id. at 160-63, relied on another missed statutory deadline case, Brock v. Pierce County. In that case, which involved late action by the Secretary of Labor, the Court was extremely hesitant "to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake." 476 U.S. 253, 260 (1986). The Court reasoned that "[w]hen, as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act." Id. (footnote omitted). The Supreme Court in Peabody and Pierce County did not explicitly discuss laggard agency action in terms of the APA. If an agency misses a mandatory deadline without justification, such late action would arguably qualify as "an abuse of discretion" under section 706(2)(A) of the APA. Cf. Int'l Union, United Auto. Workers v. Chao, 361 F.3d 249, 254 (3d Cir. 2004) (finding a missed deadline not to be an abuse of discretion because the deadline was aspirational, not mandatory); Action on Smoking & Health v. Dep't of Labor, 100 F.3d 991, 993 (D.C. Cir. 1996) (same). But if the agency has acted, albeit late, a section 706(2)(A) challenge likely will be moot or provide no considerable remedy.
148. See, e.g., Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110, 112 (8th Cir. 1997) ("Absent specific statutory direction, an agency's failure to meet a mandatory time limit does not void subsequent agency action."); Linemaster Switch Corp. v. U.S. EPA, 938 F.2d 1299, 1304 (D.C. Cir. 1991) ("We are especially reluctant to so curb EPA's substantive authority [to add sites to the National Priorities List] in light of Supreme Court decisions declining to restrict agencies' powers when Congress has not indicated any intent to do so and has crafted less drastic remedies for the agency's failure to act.").
149. See, e.g., Dixie Fuel Co. v. Comm'r of Soc. Sec., 171 F.3d 1052, 1063-64 (6th Cir. 1999), rev'd, Peabody, 537 U.S. at 172. Late agency action may raise additional concerns if the agency wants its action to apply retroactively. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 224-25 (1988) (Scalia, J., concurring) ("If . . . a statute prescribes a deadline by which particular rules must be in effect, and if the agency misses that deadline, the statute may be interpreted to authorize a reasonable retroactive rule despite the limitation of the APA.").
150. See generally JEFFREY S. LUBBERS, A GUIDE TO FEDERAL AGENCY RULEMAKING 15-16 (4th ed. 2006) (discussing the use of hammers as "penalties if an agency fails to take timely action"); Magill, supra note 7, at 153-56 (describing hammers as providing a strong incentive for agencies to meet deadlines);
151. Richard C. Fortuna, The Birth of the Hammer, ENVTL. F., Sept.-Oct. 1990, at 18, 20-21 (recounting the 1982 proposal to add hammer provisions to the Resource Conservation and Recovery Act in response to the Carter EPA's indifferent implementation). Such provisions are more popular in divided government. Cf. id. (describing the importance of divided government to motivating the Resource Conservation and Recovery Act hammer provisions).
152. See LUBBERS, supra note 106, at 16 (discussing the hammer provision in the 1984 amendments to the Resource Conservation and Recovery Act, 42 U.S.C. § 6924(d)(1)-(2) (2000)).
153. See Magill, supra note 7, at 155 (discussing the hammer provisions in the Nutrition Labeling and Education Act of 1990).
154. Bradley C. Karkkainen, Information-Forcing Environmental Regulation, 33 FLA. ST. U. L. REV. 861, 883 (2006);
155. see also Mark Seidenfeld, A Big Picture Approach to Presidential Influence on Agency Policy-Making, 80 IOWA L. REV. 1, 8 n.40 (1994) ("A hammer provision . . . leaves the agency discretion to generate a regulatory scheme in the first instance, but threatens . . . forfeiture of that discretion should the agency fail to comply with the statutory deadline.").
156. 5 U.S.C. § 553(b)(3)(B) (2000).
157. LUBBERS, supra note 106, at 111; Ellen R. Jordan, The Administrative Procedure Act's "Good Cause" Exemption, 36 ADMIN. L. REV. 113, 125-29 (1984).
158. Jordan, supra note 111, at 126.
159. U.S. Steel Corp. v. EPA, 649 F.2d 572, 575 (8th Cir. 1981); W. Oil & Gas Ass'n v. U.S. EPA, 633 F.2d 803, 812 (9th Cir. 1980); New Jersey v. U.S. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980); U.S. Steel Corp. v. U.S. EPA, 595 F.2d 207, 214 (5th Cir. 1979); Sharon Steel Corp. v. EPA, 597 F.2d 377, 379 (3d Cir. 1979); see also Jordan, supra note 111, at 127-28 (summarizing the conflict among the appellate courts).
160. Republic Steel Corp. v. Costle, 621 F.2d 797, 803 (6th Cir. 1980); U.S. Steel Corp. v. U.S. EPA, 605 F.2d 283, 286-90 (7th Cir. 1979). The Supreme Court refused to resolve the circuit split. See U.S. Steel Corp. v. U.S. EPA, 444 U.S. 1035 (1980) (denying certiorari).
161. See, e.g., Sharon Steel, 597 F.2d at 380. These courts emphasized that the EPA gave no reason for "why it could not at least have published the . . . initial list[s] upon receipt and accepted comments during the time it was reviewing the list[s]." U.S. Steel Corp. v. U.S. EPA, 595 F.2d 207, 213 (5th Cir. 1979). Such quick action "would have afforded petitioners some warning of the imminent designations and allowed them opportunity to influence the agency's action." Id.; see also New Jersey, 626 F.2d at 1047.
162. U.S. Steel Corp. v. U.S. EPA, 595 F.2d 207, 213 (5th Cir. 1979); see also New Jersey, 626 F.2d at 1043 n.3; Sharon Steel, 597 F.2d at 379 n.4. The courts also pointed to the agency's own repeated remarks that the designations in the final rule were "preliminary" in the statute's regulatory scheme, suggesting that the agency could have issued the designations as a proposed rule. See, e.g., New Jersey, 626 F.2d at 1042 (citing U.S. Steel Corp. v. U.S. EPA, 595 F.2d 207, 214 (5th Cir. 1979)).
163. See U.S. Steel Corp. v. U.S. EPA, 595 F.2d 207, 214-15 (5th Cir. 1979) ("Were we to allow the EPA to prevail on this point we would make the provisions of § 553 virtually unenforceable. An agency that wished to dispense with pre-promulgation notice and comment could simply do so, invite post-promulgation comment, and republish the regulation before a reviewing court could act."); see also New Jersey, 626 F.2d at 1049; Sharon Steel, 597 F.2d at 381.
164. Republic Steel, 621 F.2d at 804. The Sixth Circuit did not find the issue close: "If the circumstances of this case do not justify employment of the good cause exception, we will be hard put to find any justification for its use." Id.
165. U.S. Steel Corp. v. U.S. EPA, 605 F.2d 283, 287 (7th Cir. 1979).
166. See, e.g., Republic Steel, 621 F.2d at 804 ("Under these circumstances, we think that the Administrator's solution of promulgating a schedule of nonattainment areas and subsequently receiving objections and comment, and thereafter effecting such changes as were required, was a reasonable approach consistent with the Administrative Procedures Act.").
167. As the Seventh Circuit explained, "We have already noted the Congressional concern manifest in the Clean Air Act that national attainment be achieved as expeditiously as practicable. This concern was reflected in the desire that the due administration of the statutory scheme not be impeded by endless litigation over technical and procedural irregularities." U.S. Steel Corp. v. U.S. EPA, 605 F.2d 283, 290 (7th Cir. 1979).
168. Republic Steel, 621 F.2d at 804.
169. Most importantly, the mere existence of a deadline is not sufficient for establishing good cause. See, e.g., Natural Res. Def. Council v. Abraham, 355 F.3d 179, 205-06 (2d Cir. 2004).
170. Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225, 1236 (D.C. Cir. 1994). Courts have viewed forty-nine and sixty days as sufficiently "tight," but not six, twelve, or fourteen months. See Nat'l Women, Infants & Children Grocers Ass'n v. Food & Nutrition Serv., 416 F. Supp. 2d 92, 106 (D.D.C. 2006) (citing cases from the courts of appeals).
171. Methodist Hosp., 38 F.3d at 1237 (citing Council of S. Mountains, Inc. v. Donovan, 653 F.2d 573, 581 (D.C. Cir. 1981)).
172. LUBBERS, supra note 106, at 111. For example, interim final rulemaking that precedes final rulemaking is more acceptable. Am. Transfer & Storage Co. v. Interstate Commerce Comm'n, 719 F.2d 1283, 1294 (5th Cir. 1983).
173. LUBBERS, supra note 106, at 112.
174. Congress may, of course, simultaneously set deadlines and explicitly waive APA requirements in a statutory scheme, as it has occasionally done. For example, section 161(d) of Title I of the Federal Agriculture Improvement and Reform Act of 1996 prescribed that the Secretary of Agriculture and the Commodity Credit Corporation promulgate regulations within ninety days "without regard to . . . the notice and comment provisions of section 553 of Tide 5." 7 U.S.C. § 7281(d)(1) (2000); see also 7 U.S.C. § 1522 note, Act of July 24, 2001, Pub. L. No. 107-20, tit. II, ch. 1, § 2103, 115 Stat. 155, 165 (mandating that "[n]ot later than August 1, 2001, the Federal Crop Insurance Corporation shall promulgate final regulations to carry out section 522(b) of the Federal Crop Insurance Act . . . , without regard to . . . the notice and comment provisions of section 553"); 16 U.S.C. § 3831(k)(3)(I)(ii) (Supp. V 2005) (requiring regulations implementing the Emergency Supplemental Appropriations To Address Hurricanes in the Gulf of Mexico and Pandemic Influenza to be issued within ninety days "without regard to . . . the notice and comment provisions of section 553 of title 5").
175. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (footnotes omitted).
176. See Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 191 (2006) (defining Chevron "Step Zero" as the initial determination of whether the Chevron framework applies).
177. The term originally appeared in Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 836 (2001).
178. 533 U.S. 218 (2001).
179. See Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 VAND. L. REV. 1443, 1486 (2005); Sunstein, supra note 130, at 213-16;
180. see also Adrian Vermeule, Introduction: Mead in the Trenches, 71 GEO. WASH. L. REV. 347 (2003) (considering how Mead affected the D.C. Circuit's jurisprudence).
181. Mead, 533 U.S. at 226-27.
182. Recent statements suggest that procedural formality is neither a necessary nor a sufficient condition for deference, but that judicial deference is much more likely when agency views are articulated using formal procedures like notice and comment rulemaking. Mead's language initially appeared to make Step Zero turn entirely on procedural formality. Unfortunately, the precise relationship between the delegation of force-of-law authority and procedural formality remained elusive. The Court clearly stated that a lack of procedural formality does not preclude Chevron deference. See Mead, 533 U.S. at 231 ("The fact that the tariff classification here was not a product of such formal process does not alone, therefore, bar the application of Chevron."). And at least Justice Breyer thinks procedural formality is not a sufficient condition for Chevron deference either. See Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 1004-05 (2005) (Breyer, J., concurring) ("It is not a sufficient condition because Congress may have intended not to leave the matter of a particular interpretation up to the agency, irrespective of the procedure the agency uses to arrive at that interpretation . . . .").
183. See, e.g., Delaney v. EPA, 898 F.2d 687, 691 (9th Cir. 1990) ("When Congress has explicitly set an absolute deadline, congressional intent is clear. . . . The EPA cannot extract leeway from a statute that Congress explicitly intended to be strict."), superseded by statute, Clean Air Act Amendments, Pub. L. No. 101-549, 104 Stat. 2399 (1990), as recognized in Ober v. U.S. EPA, 84 F.3d 304, 311-12 (9th Cir. 1996); infra note 151 and accompanying text.
184. See, e.g., Natural Res. Def. Council v. EPA, 489 F.3d 1364, 1374 (D.C. Cir. 2007) ("Congress has spoken on the question and has not provided EPA with authority under [the statute] to extend the compliance date in [its] 2006 rule."); Sierra Club v. EPA, 311 F.3d 853, 862 (7th Cir. 2002) ("In sum, Congress addressed in great detail the circumstances under and extent to which the EPA could grant exceptions to the nonattainment schedule. Extensions where the failure is the result of transported ozone are not among them. . . . [U]nder our system of government, it is not our business or the EPA's business to rewrite a clear statute so that it will better reflect 'common sense and the public weal.'"); Abramowitz v. U.S. EPA, 832 F.2d 1071, 1077-78 (9th Cir. 1987) ("Although it is axiomatic that a reviewing court cannot substitute its judgment for that of the administrative agency, it is equally well established that a court cannot defer to agency discretion when the intent of the Act is clear. . . . We conclude that EPA exceeded its authority by approving [particular regulatory measures] . . . without requiring a demonstration [that the statutory deadline would be met]."), superseded by statute, Clean Air Act Amendments, Pub. L. No. 101-549, 104 Stat. 2399 (1990), as recognized in Hall v. U.S. EPA, 273 F.3d 1146, 1159 (9th Cir. 2001). But see Natural Res. Def. Council, Inc. v. EPA, 22 F.3d 1125, 1135-36 (D.C. Cir. 1994) (per curiam) (permitting the agency to extend statutory deadlines for compliance in particular circumstances).
185. Might a court find a statute's timing provisions ambiguous, thereby satisfying Chevron Step One, but nonetheless conclude the agency's interpretation of those provisions is unlawful? This is possible, but not particularly likely. Although there are court decisions in which agencies lose at Step Two, such an outcome is rare. See generally Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 CHI.- KENT L. REV. 1253, 1260-62 (1997).
186. 5 U.S.C. § 706, 706(2)(a) (2000).
187. Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks omitted).
188. As Jack Beermann explains in the context of judicial deadlines, Courts might . . . be reluctant to cast doubt on the legality of rules in . . . situations in which agencies promulgate rules under external compulsion. . . . Under the influence of a court decree, an agency may issue a rule that deviates from actual administrative preferences. One could argue that the agency did not seriously consider comments that were contrary to the push or pull of the external force such as the judicial order. . . . Courts are unlikely to accept these arguments, which in effect would hamper courts' ability to enforce their judgments regarding proper administrative conduct. Jack M. Beermann, Presidential Power in Transitions, 83 B.U. L. REV. 947, 1002-03 (2003); cf. Pierce, supra note 7, at 74-75, 88 (discussing Judge Easterbrook's view that courts should relax their review of actions completed by resource-starved agencies).
189. Some limited case law also supports this argument. In California Human Development Corp. v. Brock, the D.C. Circuit upheld an allocation of funds by the Department of Labor (DOL) as rational, given a deadline: The DOL's actions were rational, given the information that the DOL had at the time the agency promulgated the regulations. Complex decisions had to be made in a short time span. The change in allocation pattern was mainly due to the substitution of the 1980 Census data for the 1977 Social Security data. That choice must be laid at the doorstep of the Congress. At least for the DOL's fiscal year 1983 and 1984 allocations, this court cannot find the agency's allocation formula to be arbitrary and capricious. 762 F.2d 1044, 1051 (D.C. Cir. 1985) (internal quotation marks, footnote, and alterations omitted); cf. Hercules Inc. v. EPA, 598 F.2d 91, 129 (D.C. Cir. 1978) (explicitly relying on the presence of a statutory deadline to uphold the agency's questionable actions in a challenge under APA section 557(b)).
190. Cf. Cross, supra note 41, at 1027-36 (discussing the adverse effects of challenges to agency inaction); R. Shep Melnick, Administrative Law and Bureaucratic Reality, 44 ADMIN. L. REV. 245, 249-51 (1992) (suggesting that litigation over deadlines can undermine agencies' abilities to regulate effectively);
191. R. Shep Melnick, The Political Roots of the Judicial Dilemma, 49 ADMIN. L. REV. 585, 589-91 (1997) (arguing that courts ignore the disparity between agency resources and the demands imposed on them by deadlines).
192. See Biber, supra note 7, at 47 (arguing that courts should "defer to agency decisions about resource allocation" unless an agency is "flouting the will of Congress"); Pierce, supra note 7, at 93-94 (suggesting that courts "should excuse agencies from the duty to comply with a statutory deadline" when compliance would require the agency to "violat[e] another statute"); cf. Cass R. Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U. CHI. L. REV. 653, 670 (1985) (characterizing resource allocation decisions as generally "consistent with congressional will").
193. State Farm, 463 U.S. at 43.
194. Cf. Salameda v. INS, 70 F.3d 447, 452 (7th Cir. 1995) ("[U]nderstaffing is not a defense to a violation of principles of administrative law . . . ."); Pierce, supra note 7, at 73-75 (discussing the Salameda case).
195. See Abbott, Cost-Benefit Appraisal, supra note 7, at 177-78 (discussing statutory escape clauses, which excuse agency noncompliance with deadlines).
196. 5 U.S.C. § 552(a)(6) (2000).
197. See id. § 552(a)(6)(C)(i) ("If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records."). This additional time is termed an Open America stay. See Open Am. v. Watergate Special Prosecution Force, 547 F.2d 605, 615-16 (D.C. Cir. 1976).
198. Abbott, Cost-Benefit Appraisal, supra note 7, at 178.
199. Id.
200. See 510 F.2d 692, 712 (D.C. Cir. 1975) ("First, it is possible that budgetary commitments and manpower demands required to complete the guidelines by [the statutory deadline] are beyond the agency's capacity or would unduly jeopardize the implementation of other essential programs. Second, [the agency] may be unable to conduct sufficient evaluation of available control technology to determine which is the best practicable or may confront problems in determining the components of particular industrial discharges."). This case has generated considerable controversy and led many courts to distinguish it. See, e.g., Envtl. Def. Fund v. Thomas, 627 F. Supp. 566, 569-70 (D.D.C. 1986) (arguing that, under Train, an agency can show that it is proceeding in good faith and not trying to "mandate flat guidelines on its own"); Sierra Club v. Thomas, 658 F. Supp. 165, 171 n.5 (N.D. Cal. 1987) (finding that Environmental Defense Fund v. Thomas "misconstrue[d] Train" by not requiring an agency to show "utmost diligence"); New York v. Gorsuch, 554 F. Supp. 1060, 1065 & n.4 (S.D.N.Y. 1983) (disapproving of the susceptibility of the language in Train to expansive interpretation, and arguing that a "good faith" standard for an administrator's compliance with a statutory mandate can only work if applied very strictly). Courts agree, however, that the agency bears the "heavy" burden of "establishing impossibility or infeasibility of issuing regulations within the statutory time frame." Sierra Club, 658 F. Supp. at 171. Not surprisingly, courts are typically hesitant to find impossibility or infeasibility in the face of clear congressional desires. See, e.g., Forest Guardians v. Babbitt, 174 F.3d 1178, 1181 (10th Cir. 1999) (rejecting an impossibility argument in the face of "a mandatory, non-discretionary duty unambiguously imposed by the" statute); Natural Res. Def. Council, Inc. v. U.S. EPA, 797 F. Supp. 194, 197 (E.D.N.Y. 1992) (finding that the EPA's claim of impossibility was not "sufficient to justify a departure from a Congressional mandate"); New York, 554 F. Supp. at 1065 (arguing that recognizing an impossibility exception would grant the agency "unbridled discretion . . . regardless of specific congressional directions to the contrary").
201. See Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177 (9th Cir. 2002) (finding equitable relief appropriate when "an injunction is necessary to effectuate the congressional purpose behind the statute"); In re Int'l Chem. Workers Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992) ("A reviewing court 'shall compel agency action unlawfully withheld or unreasonably delayed.'" (quoting Administrative Procedure Act, 5 U.S.C. § 706(1) (1988))). But when courts do impose judicial deadlines, they essentially create hammer provisions of their own. In Northwest Environmental Advocates v. U.S. EPA, the Northern District of California gave the EPA two years to establish regulations for ballast water discharges from vessels at American ports. No. 03-5760, 2006 WL 2669042, at *12 (N.D. Cal. Sept. 18, 2006). The court also ruled that at the end of the two years it would vacate a rule exempting such discharges from the National Pollutant Discharge Elimination System under the Clean Water Act. See id. at *15.
202. In In re International Chemical Workers Union, the D.C. Circuit emphasized the gravity of its action: There is a point when the court must "let [an] agency know, in no uncertain terms, that enough is enough," and we believe that point has been reached. We are not unmindful of OSHA's need to "juggle competing rulemaking demands on its limited scientific and legal staff," but we think the delay in promulgating a final rule that OSHA believes is necessary to workers' well-being has been too lengthy for us to temporize any longer. We accept OSHA's estimate of the additional time it needs to complete the final stages of the rulemaking, but we insist that there be no postponement beyond the August 31, 1992 target date. Any additional delay would violate this court's order. 958 F.2d at 1150 (citations omitted) (quoting Pub. Citizen Health Research Group v. Brock, 823 F.2d 626, 627, 629 (D.C. Cir. 1987) (per curiam)).
203. See, e.g., Alaska Ctr. for the Env't v. Browner, 20 F.3d 981, 987 (9th Cir. 1994) (holding that when agencies are derelict in their duties, "it is up to the courts in their traditional, equitable, and interstitial role to fashion the remedy. This the district court [by requiring the agency to set new deadlines for itself] has done in a manner we cannot fault.").
204. For example, in Public Citizen Health Research Group v. Auchter, the D.C. Circuit wrote: Although we dictate no fixed date for issuance of a final rule, we do direct OSHA to proceed on a priority, expedited basis and to issue a permanent standard as promptly as possible . . . . Under the circumstances presented here, i.e., the significant risk of grave danger to human life, and the time OSHA has already devoted to [the matter], we expect promulgation of a final rule within a year's time. 702 F.2d 1150, 1159 (D.C. Cir. 1983). To put pressure on the agency, courts can also retain jurisdiction over a challenge to agency inaction. See, e.g., In re Ctr. for Auto Safety, 793 F.2d 1346, 1354 (D.C. Cir. 1986) ("[B]ecause of NHTSA's history of chronic delay and its repeated failure to meet its own projections, even in the face of a pending lawsuit and while subject to court scrutiny, the least that this court must do is to retain jurisdiction over this case until agency publication of the final . . . standards.").
205. See, e.g., Kagan, supra note 3, at 2246, 2290-99 (defending the Clinton administration's exercise of "directive authority" to "serve pro-regulatory objectives"); cf. Beermann, supra note 140 (discussing the phenomenon of "midnight regulation" during presidential transition periods); Seidenfeld, supra note 109 (arguing against presidential micromanagement of agency policies).
206. The President appoints the leaders of independent agencies, with Senate confirmation, but cannot remove most of them except for cause. See, e.g., Humphrey's Executor v. United States, 295 U.S. 602, 629 (1935).
207. See Kagan, supra note 3, at 2282 (arguing that Clinton built on Reagan's legacy to show that "presidential supervision of administration could . . . trigger, not just react to, agency action").
208. See Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993), amended by Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 18, 2007).
209. Exec. Order No. 12,866, § 6(a)(3)(D), 58 Fed. Reg. at 51,741.
210. See Kagan, supra note 3, at 2279 ("[T]he OMB director could cite only six instances in which agencies had issued rules over OMB's objections: in four, the agencies had acted under judicial order, and in two, the agencies successfully had appealed their position to the White House.").
211. See Envtl. Def. Fund v. Thomas, 627 F. Supp. 566, 571 (D.D.C. 1986) ("OMB has no authority to use its regulatory review . . . to delay promulgation . . . beyond the date of a statutory deadline."); see also In re United Mine Workers of Am. Int'l Union, 190 F.3d 545, 551 (D.C. Cir. 1999) ("[T]he President is without authority to set aside congressional legislation by executive order, and the 1993 executive order does not purport to do so.").
212. Exec. Order No. 12,866, § 9, 58 Fed. Reg. at 51,744.
213. See Exec. Order No. 13,422, §§ 1-3, 7, 72 Fed. Reg. at 2763-65 (adding agency guidance documents to the list items for review by OIRA); see also Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. CHI. L. REV. 821, 826-29 (2003).
214. Exec. Order No. 13,422, § 5, 72 Fed. Reg. at 2764.
215. Exec. Order No. 12,866, § 6(a), 58 Fed. Reg. at 51,740.
216. Id. § 6(b), 58 Fed. Reg. at 51,742.
217. See Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945, 1948-49 (1997) (reviewing the avoidance doctrine).
218. See generally William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 599-600 (1992) (analyzing several Burger Court opinions invoking the avoidance doctrine);
219. Lisa A. Kloppenberg, Avoiding Constitutional Questions, 35 B.C. L. REV. 1003 (1994) (exploring the justifications and criteria for invoking the avoidance rule);
220. Lawrence C. Marshall, Divesting the Courts: Breaking the Judicial Monopoly on Constitutional Interpretation, 66 CHI.-KENT L. REV. 481, 483-92 (1990) (examining "how well the [avoidance] canon reflects actual congressional awareness of constitutional issues and what kind of constitutional culture it helps create within the halls of Congress");
221. Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 WM. & MARY L. REV. 827, 838-41 (1991) (calling the avoidance canon "radically incomplete and perhaps incoherent");
222. Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71 (1995) (reviewing the impact of Justice Brandeis's concurrence in Ashwander v. Tennessee Valley Authority on the avoidance doctrine).
223. See Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 CONST. COMMENT. 307, 312-34 (2006).
224. See Pierce, supra note 7, at 85-89.
225. See generally Bagley & Revesz, supra note 3.
226. See H.R. 2829, 110th Cong. § 901 (2007) ("None of the funds made available by this Act may be used to implement Executive Order 13422."). The Senate also considered similar language, but ultimately did not include the defunding provision.
227. See Matthew C. Stephenson, The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations, 120 HARV. L. REV. 528, 533-34 (2006); see also Barnhart v. Walton, 537 U.S. 212, 221-22 (2002) (reviewing prior decisions on the relevance of rulemaking formality to the Step Zero determination).
228. See generally Cuéllar, supra note 69 (arguing that comment by the lay public serves an important function in regulatory democracy).
229. See generally M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. CHI. L. REV. 1383, 1431 (2004) ("[Mead] structures scope-of-review doctrine systematically by telling all agencies that there is a link between the policymaking form chosen and the standard of review applied.").
230. Cf. Barnhart, 537 U.S. at 221 ("[T]he fact that the Agency previously reached its interpretation through means less formal than 'notice and comment' rulemaking does not automatically deprive that interpretation of the judicial deference otherwise its due." (citation omitted)).
231. This obviates many underlying complexities. See Stephenson, supra note 173, at 533 (arguing that the increased latitude that accompanies greater procedural formality will lead to less textually plausible agency interpretations of statutes).
232. Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
233. See Pierce, supra note 7, at 85-89.
234. Abbott, Cost-Benefit Appraisal, supra note 7, at 192-95; Pierce, supra note 7, at 80-81. For arguments that judicial review in general leads to resource reallocation, see Biber, supra note 7, and Cross, supra note 41, at 1036-39.
235. See, e.g., Abbott, Cost-Benefit Appraisal, supra note 7, at 192-95.
236. See, e.g., Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 STAN. L. REV. 683, 715-36 (1999);
237. Roger G. Noll & James E. Krier, Some Implications of Cognitive Psychology for Risk Regulation, 19 J. LEGAL STUD. 747, 754-55 (1990);
238. Jeffrey J. Rachlinski & Cynthia R. Farina, Cognitive Psychology and Optimal Government Design, 87 CORNELL L. REV. 549, 556 (2002);
239. Mark Seidenfeld, Cognitive Loafing Social Conformity, and Judicial Review of Agency Rulemaking, 87 CORNELL L. REV. 486, 501-02 (2002).
240. See BREYER, supra note 17, at 33 (giving the example that "[r]isks associated with toxic waste dumps and nuclear power appear near the bottom of most expert lists; they appear near the top of the public's list of concerns, which more directly influences regulatory agendas").
241. See Pierce, supra note 7, at 65-70; see also Abbott, Cost-Benefit Appraisal, supra note 7, at 192-95 (discussing the costs of this forced reallocation of resources).
242. One might also want to compare different forms of deadline regimes (e.g., statutory deadlines, judicial deadlines, deadlines with escape clauses, etc.).
243. Cf. Biber, supra note 7, at 36 (stating that the legislature, not the agency, should be responsible if the legislature will not provide the funds to implement the duties it prescribes).
244. See, e.g., Carpenter et al., supra note 20, at 21-23 (finding that deadlines may result in the approval of less-safe pharmaceuticals).
245. On the other hand, it is possible that deadlines, by functioning as credible commitment devices, give agencies more authority (at least relative to the OMB and interest groups) and help agencies make better decisions. Cf. Magill, supra note 7, at 152, 183-84 (proposing that pressure on agencies to act quickly might diminish the potential of interested parties to influence the agency); supra note 41.
246. See Abbott, Cost-Benefit Appraisal, supra note 7. There are also costs and benefits to various institutions, which often may not align with social welfare or political accountability objectives. For instance, deadlines have tailored consequences for Congress, the White House, agencies, and the courts. These consequences raise interesting positive questions, some of which were discussed in Part I.
247. See Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. REV. 1217, 1221 (2006) ("[O]ne could surmise that . . . the narrow and parochial interests of individual legislators are likely to cancel each other out and produce a potential outcome that is much more representative of the national interest than that of any single political actor.").
248. See supra note 187 and accompanying text.