Cost-benefit analysis and agency independence

University of Chicago Law Review

Volumn 81, Issue 2, 2014, Pages 609-688

  Livermore, Michael A ^a  

^a UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

Author keywords

[No Author keywords available]

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EID: 84904300360     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (232)

1. Cass R. Sunstein, Cost-Benefit Analysis and the Separation of Powers, 23 Ariz L Rev 1267 (1981).
2. Environmental Protection Agency, Guidelines for Preparing Economic Analyses xv (Dec 17, 2010) ("EPA, 2010 Guidelines").
3. See Environmental Protection Agency, The Benefits and Costs of the Clean Air Act from 1990 to 2020 7-3 (Apr 2011) ("EPA, Second Prospective Study") (finding that 85 percent of benefits from rules under the 1990 Clean Air Amendments will be from mortality-risk reduction in 2020).
4. See W. Kip Viscusi and Joseph E. Aldy, The Value of a Statistical Life: A Critical Review of Market Estimates throughout the World, 27 J Risk & Uncertainty 5, 54 (2003) ("[T]he historical impetus for the adoption of the [value of statistical life] methodology was that these values boosted assessed benefits by roughly an order of magnitude, improving the attractiveness of agencies' regulatory efforts.").
5. See generally Environmental Protection Agency, Guidelines for Preparing Economic Analyses (Sept 2000) ("EPA, 2000 Guidelines").
6. See, for example, Richard H. Pildes and Cass R. Sunstein, Reinventing the Regulatory State, 62 U Chi L Rev 1, 3 (1995).
7. See Don Bradford Hardin Jr, Why Cost-Benefit Analysis? A Question (and Some Answers) about the Legal Academy, 59 Ala L Rev 1135, 1136-37 (2008) (documenting the rise in cost-benefit-related legal scholarship from 27 articles in 1981 to 628 by 2005).
8. See, for example, Elizabeth Anderson, Value in Ethics and Economics 190-216 (Harvard 1995);
9. Mark Sagoff, We Have Met the Enemy and He Is Us or Conflict and Contradiction in Environmental Law, 12 Envir L 283, 286-88 (1982).
10. See, for example, Joseph Cooper and William F. West, Presidential Power and Republican Government: The Theory and Practice of OMB Review of Agency Rules, 50 J Polit 864, 878-80 (1988);
11. Terry M. Moe, The Politicized Presidency, in John E. Chubb and Paul E. Peterson, eds, The New Direction in American Politics 235, 235 (Brookings 1985).
12. See, for example, Office of Senator Mark R. Warner, Press Release, Warner, Portman, Collins Introduce Legislation to Provide Regulatory Relief (Aug 1, 2012), online at http://www.warner.senate.gov/public/index.cfm/mobile/ pressreleases?ID=c22c0a48-8ab7-46bb-894e-414b35220324 (visited May 15, 2014) (discussing a bill to authorize the president to extend regulatory-review requirements to independent agencies).
13. See, for example, OMB Watch, Press Release, OMB Watch Calls on the Obama Administration to Revise Regulatory Process (Jan 29, 2010), online at http://dev.ombwatch.org/node/10738 (visited May 15, 2014) ("Currently, agencies are required to perform any number of analyses before writing new standards, including the notoriously unreliable cost-benefit analysis.").
14. See, for example, Ruth Marcus, Sledgehammer Politics, Wash Post A19 (Apr 25, 2012).
15. For arguments concerning the general indeterminacy of cost-benefit analysis, see Duncan Kennedy, Cost-Benefit Analysis of Entitlement Problems: A Critique, 33 Stan L Rev 387, 388 (1981);
16. Richard S. Markovits, Duncan's Do Nots: Cost-Benefit Analysis and the Determination of Legal Entitlements, 36 Stan L Rev 1169, 1188-96 (1984). There is substantial literature on scientific uncertainty in regulatory decision making as well.
17. See National Research Council, Science and Judgment in Risk Assessment 160-87 (National Academy 1994).
18. See also Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum L Rev 1613, 1619-22 (1995).
19. For more information on antecedents to Reagan's move, see Jim Tozzi, OIRA's Formative Years: The Historical Record of Centralized Regulatory Review preceding OIRA's Founding, 63 Admin L Rev 37, 40-62 (Special Edition 2011) (giving a historical overview of review before the Reagan administration). Cost-benefit analysis also has a history that long precedes the institution of regulatory review.
20. See generally Jonathan B. Wiener, The Diffusion of Regulatory Oversight, in Michael A. Livermore and Richard L. Revesz, eds, The Globalization of Cost-Benefit Analysis in Environmental Policy 123 (Oxford 2013);
21. W. Michael Hanemann, Preface, in Ståle Navrud, ed, Pricing the European Environment 9 (Oxford 1992) (discussing the role of water projects in development of cost-benefit analysis in United States).
22. See, for example, William F. West and Joseph Cooper, Legislative Influence v. Presidential Dominance: Competing Models of Bureaucratic Control, 104 Polit Sci Q 581, 590 (1990) (arguing that the Executive Order 12291 was among several important moves by presidents as well as courts toward greater presidential authority over regulatory decision making).
23. President George W. Bush continued under the Clinton order, making only minor changes at the end of his term. See generally Executive Order 13422, 72 Fed Reg 2763 (2007).
24. See Michael A. Livermore and Richard L. Revesz, Regulatory Review, Capture, and Agency Inaction, 101 Georgetown L J 1337, 1340 (2013).
25. See, for example, Elena Kagan, Presidential Administration, 114 Harv L Rev 2245, 2278-79 (2001).
26. See Christopher C. DeMuth and Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 Harv L Rev 1075, 1081-82 (1986);
27. John D. Graham, Saving Lives through Administrative Law and Economics, 157 U Pa L Rev 395, 465-66 (2008).
28. See Eric A. Posner, Controlling Agencies with Cost-Benefit Analysis: A Positive Political Theory Perspective, 68 U Chi L Rev 1137, 1143 (2001).
29. See generally Cass R. Sunstein, Cognition and Cost-Benefit Analysis, 29 J Legal Stud 1059 (2000);
30. See Christopher C. DeMuth and Douglas H. Ginsburg, Rationalism in Regulation, 108 Mich L Rev 877, 902-03 (2010).
31. Sidney A. Shapiro, Political Oversight and the Deterioration of Regulatory Policy, 46 Admin L Rev 1, 12 (1994) (quoting James Miller III, the first director of OIRA).
32. Sally Katzen, A Reality Check on an Empirical Study: Comments on "Inside the Administrative State," 105 Mich L Rev 1497, 1503-04 & n 41 (2007) (arguing that OIRA "answer[s] to the president," and that differences of opinion between OIRA personnel and political appointees at agencies stem from the "broader lens" that OIRA staff applies).
33. See Lisa Heinzerling, Statutory Interpretation in the Era of OIRA, 33 Fordham Urban L J 1097, 1114-15 n 118 (2006) (citing the EPA Administrators' powers under the Clean Water Act).
34. See Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J L, Econ & Org 243, 247 (1987) ("A consequence of delegating authority to bureaucrats is that they may become more expert about their policy responsibilities than the elected representatives who created their bureau.").
35. See Alan B. Morrison, OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation, 99 Harv L Rev 1059, 1066 (1985) (lamenting "vast. resources spent in justifying proposed regulations to OMB").
36. Whether increasing OIRA's power facilitates presidential control is a separate question. See Nicholas Bagley and Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 Colum L Rev 1260, 1307-12 (2006) (discussing the relationships between the president, OIRA, and agencies).
37. See James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It 237 (Basic Books 1989) ("No agency is free to ignore the views of Congress. An agency may, however, defer to the views of one part of Congress.").
38. See also Bruce Ackerman, The New Separation of Powers, 113 Harv L Rev 633, 702-05 (2000) (describing fractured oversight of agencies);
39. Thomas H. Hammond and Jack H. Knott, Who Con doctrols the Bureaucracy? Presidential Power, Congressional Dominance, Legal Constraints, and Bureaucratic Autonomy in a Model of Multi-institutional Policy-Making, 12 J L, Econ & Org 119, 140-42 (1996) (presenting a model for agency autonomy when faced with multiple principals).
40. See, for example, Robert Haveman, The Chicago O'Hare Expansion: A Case Study of Administrative Manipulation of Benefit-Cost Principles, 23 Rsrch L & Econ 183, 184-86 (2007).
41. Matthew D. Adler and Eric A. Posner, Rethinking Cost-Benefit Analysis, 109 Yale L J 165, 172 (1999).
42. See, for example, J. Lon Carlson, John B. Braden, and David W. Martin, Implications of Executive Order 12,291 for Discretion in Environmental Regulation, 12 BC Envir Affairs L Rev 313, 315 (1985) (expressing concern that agencies had overly broad discretion in implementing the Reagan order).
43. Mark E. Solomons, et al, Agency Diplomacy: Relations with Congress and the White House, and Ethics in the Administrative Process, 4 Admin L J 3, 25 (1990) (comments of Frank White).
44. See M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U Chi L Rev 1383, 1386-90 (2004).
45. Jennifer Nou, Agency Self-Insulation under Presidential Review, 126 Harv L Rev 1755, 1782-84, 1793-96 (2013).
46. see Connor Raso, Do Agencies Use Guidance Documents to Avoid Presidential Control? 3-7 (American Bar Association, Gelhorn-Sargentich Law Student Essay Competition 2009), online at http://www.americanbar.org/content/dam/aba/ migrated/adminlaw/awardsprogram/Connor-Raso-GS-Essay-Winner.authcheckdam.pdf (visited May 15, 2014).
47. See E. Donald Elliott, TQM-ing OMB: Or Why Regulatory Review under Executive Order 12,291 Works Poorly and What President Clinton Should Do about It, 57 L & Contemp Probs 167, 171-74 (Spring 1994) (recounting OIRA influence over rule making based on his time as EPA general counsel);
48. Richard L. Revesz and Michael A. Livermore, Retaking Rationality 26, 28 (Oxford 2008) (citing John Daniel, chief of staff to the EPA Administrator under President Reagan, and James Tozzi, a career staffer at OMB who served during several presidential administrations);
49. Donald R. Arbuckle, OIRA and Presidential Regulatory Review: A View from Inside the Administrative State, *66-73 (unpublished manuscript, May 2008), online at http://works.bepress.com/donald-arbuckle/1 (visited May 15, 2014) (depicting OIRA review as competently facilitating presidential oversight and interagency coordination);
50. William F. West, The Institutionalization of Regulatory Review: Organizational Stability and Responsive Competence at OIRA, 35 Pres Stud Q 76, 86-91 (2005) (same). Justice Elena Kagan has argued that, based on her experience in the Clinton administration, the White House is able to exert substantial influence over agency decision making, in part through OIRA review.
51. See Lisa Schultz Bressman and Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 Mich L Rev 47, 62-64 (2006).
52. A 2003 review by the Government Accountability Office (GAO) examined rules reviewed by OIRA in 2001 and 2002, finding that of seventy-one rules that were "changed" during the process of review, seventeen of them had been significantly altered. See Curtis W. Copeland, The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking, 33 Fordham Urban L J 1257, 1282 (2006) (discussing the GAO report).
53. See Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U Chi L Rev 821, 873-75 (2003). Follow-up research to the Croley analysis using more recent data has largely confirmed his findings, though it sometimes draws different conclusions about the role of interest groups.
54. See Rena Steinzor, Michael Patoka, and James Goodwin, Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety, and the Environment 15 (Center for Progressive Reform White Paper No 111ES, Nov 2011), online at http://www.progressivereform.org/articles/OIRA- Meetings-1111es.pdf (visited May 15, 2014) (arguing that OIRA's contacts with regulated entities compromises neutrality);
55. Tiberiu Dragu, Presidential Rulemaking: An Empirical Analysis *2 (unpublished manuscript, Sept 2011), online at http://www.thecre.com/pdf/ 20111206-Presidential-Rulemaking-emprical.pdf (visited May 15, 2014) (finding that presidents tend to affect rule makings to a greater extent later in their administrations).
56. See Cass R. Sunstein, The Office of Information and Regulatory Affairs: Myths and Realities, 126 Harv L Rev 1838, 1856-58 (2013) (describing process of "elevation" when controversies between agencies and OIRA cannot be resolved at the staff level).
57. Precedent plays a resource-conserving function in courts. See Benjamin N. Cardozo, The Nature of the Judicial Process 149 (Yale 1921) ("[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case.").
58. See also Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 854 (1992) ("[N]o judicial system could do society's work if it eyed each issue afresh in every case that raised it.").
59. See Adrian Vermeule, Conventions of Agency Independence, 113 Colum L Rev 1163, 1203-14 (2013) (discussing the role of convention to limit the president's power to direct agencies).
60. Perhaps the most well-known example of analysis altering an administration's position was the lead phase-out rule during the Reagan administration, in which costbenefit analysis was credited with saving EPA's preferred rule. See generally Albert L. Nichols, Lead in Gasoline, in Richard D. Morgenstern, ed, Economic Analyses at EPA: Assessing Regulatory Impact 49 (Resources for the Future 1997) (providing a detailed account of the role of analysis in lead phase-out). Reflecting on his tenure at OIRA, John Graham describes instances in which agency cost-benefit analyses were used to help protective regulation survive political opposition from within the George W. Bush White House, including rules to reduce diesel engine exhaust and interstate air pollution and increase fuel efficiency.
61. Environmental Protection Agency, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities, 75 Fed Reg 35128, 35211-18 (June 21, 2010) (discussing costs and benefits of the proposed rule and potential for a "stigma" effect to reduce beneficial use of coal ash).
62. Michael Patoka, Ash Time Goes By: Administration Continues Foot-Dragging on Coal Ash Rule as Toxic Landfills and Ash Ponds Grow by 94 Million Tons Each Year, CPRBlog (Center for Progressive Reform July 24, 2013), online at http://progressivereform.org/CPRBlog.cfm?idBlog=109A8444-BFBB-6891- C205C8277C3118ED (visited May 15, 2014) (criticizing the Obama administration for failing to move quickly to adopt coal ash rule).
63. Compare Environmental Protection Agency, Regulatory Impact Analysis for the Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone in 27 States; Correction of SIP Approvals for 22 States 1 (2011) (estimating annual net quantified benefits between $110 billion and $280 billion)
64. Environmental Protection Agency, Regulatory Impact Analysis for the Final Mercury and Air Toxics Standards 8-2 table 8-1 (2011) (estimating annual net quantified benefits between $27 billion and $80 billion)
65. Environmental Protection Agency, Regulatory Impact Analysis: Final National Ambient Air Quality Standard for Ozone 10 figure S1.4 (2011) (showing potential for costs to exceed benefits).
66. It is to be expected that, at least frequently, when "an administration's political preferences conflict with economic analysis, analysis loses." Stuart Shapiro, Unequal Partners: Cost-Benefit Analysis and Executive Review of Regulations, 35 Envir L Rptr 10433, 10439 (2005).
67. Matthew C. Stephenson, Bureaucratic Decision Costs and Endogenous Agency Expertise, 23 J L, Econ & Org 469, 476-77 (2007) (discussing how manipulation of "enactment cost" for agencies can produce incentives to invest in expertise).
68. Environmental Protection Agency, FY 2012 EPA Budget in Brief 11 (2011).
69. Environmental Protection Agency, How Many People Work for the EPA?, online at http://publicaccess.supportportal.com/link/portal/23002/23012/Article/ 17588/How-many-people-work-for-the-EPA (visited May 15, 2014).
70. See OIRA, Frequently Asked Questions, online at http://www.reginfo.gov/ public/jsp/Utilities/faq.jsp (visited May 15, 2014).
71. See Thomas O. McGarity, Reinventing Rationality: The Role of Regulatory Analysis in the Federal Bureaucracy 256-61 (Cambridge 1991) (discussing the influence of the policy office over the course of several administrators).
72. NCEE was created during an internal reorganization of the agency's economics personnel in 2000. Predecessors of the current organization stretch back almost to the origins of EPA. See NCEE, Organization and History, online at http://yosemite.epa.gov/ee/epa/eed.nsf/webpages/Organization.html (visited May 15, 2014). These include the Benefits Branch, which existed within what was then the Office of Policy, Planning and Evaluation in the mid-1980s and the Implementation Research Division at the Office of Research and Development in the early 1970s.
73. As of this writing, there were twentyeight economists at NCEE. NCEE, Staff Profiles, online at http://yosemite.epa.gov/ee/epa/eed.nsf/webpages/Staff. html (visited May 15, 2014).
74. See NCEE, Alumni - Former NCEE Staff, online at http://yosemite.epa.gov/ ee/epa/eed.nsf/87f47db4cfc956d7852575a6006ab365/ c0167733a3872e3d852576a2007643fe!OpenDocument (visited May 15, 2014).
75. See Alan Carlin, Appendix 1: History of Economic Research at the EPA, in Robert C. Anderson and Paul Kobrin, Introduction to Environmental Economics Research at EPA (Environmental Protection Agency Aug 2006), online at http://yosemite.epa.gov/EE/epa/eed.nsf/dcee735e22c76aef85257662005f4116/ 2f68aa9ffb75364b8525779700781a24!OpenDocument (visited May 21, 2014) (noting move of economics research program from EPA's Office of Research and Development to the Office Policy, Planning and Evaluation to respond to demands of Reagan order).
76. See Environmental Protection Agency, Economics & Cost Analysis Support, online at http://www.epa.gov/ttnecas1/index.html (visited May 15, 2014).
77. See generally, for example, Bryan J. Hubbell, Implementing QALYs in the Analysis of Air Pollution Regulations, 34 Envir & Res Econ 365 (2006).
78. This estimate is based on the information contained in the Environmental Economics Report Inventory and was compiled by Chris Anderson. NCEE, Environmental Economics Reports Inventory Database, online at http://yosemite.epa.gov/ee/epa/eed.nsf/webpages/EnvironmentalEconomicsReports. html (visited May 15, 2013) ("EERI").
79. Sheila M. Cavanagh, Robert H. Hahn, and Robert N. Stavins, National Environmental Policy during the Clinton Years 8 n 11 (Resources for the Future Discussion Paper No 01-38, Sept 2001).
80. See, for example, EPA Science Advisory Board, Valuing the Protection of Ecological Systems and Services 43-57 (2009) (advising EPA on valuation techniques).
81. Reorganization Plan No 3 of 1970, in 2 Environmental Statutes 1582, 1588 (Government Institutes 2008).
82. See generally Thomas D. Crocker, Urban Air Pollution Damage Functions: Theory and Measurement (1971).
83. See generally Marc J. Roberts, A Study of the Measurement and Distribution of Costs and Benefits of Water Pollution Control (1971).
84. See also Alan Carlin, Preface, in Robert C. Anderson and Paul Kobrin, Regulatory Economic Analysis at the EPA (NCEE June 2000), online at http://yosemite1.epa.gov/ee/epa/eed.nsf/2602a2edfc22e38a8525766200639df0/ 002f723d6189d45e852577f800072d66!OpenDocument (visited May 21, 2014).
85. See generally Abt Associates, A Profile of Tax Subsidies and Investment Behavior in Six Major Polluting Industries (1997).
86. See generally Nancy S. Dorfman and Arthur Snow, Who Bears the Cost of Pollution Control? The Impact on the Distribution of Income of Financing Federally Required Pollution Control (National Technical Information Service 1973).
87. See generally Daniel M. Violette, A Model Estimating the Economic Impacts of Current Levels of Acidification on Recreational Fishing in the Adirondack Mountains (BiblioGov 1985).
88. See NCEE, Research Funding, online at http://yosemite.epa.gov/ee/epa/eed. nsf/Webpages/ResearchFunding.html (visited May 15, 2014) ("NSF/EPA Database").
89. See John Loomis, et al, A Comparison of Actual and Hypothetical Willingness to Pay of Parents and Non-parents for Protecting Infant Health: The Case of Nitrates in Drinking Water, 41 J Ag & Applied Econ 697, 710 (2009).
90. See generally Gordon Scott Bonham, Economic and Social Impact of Employees Commute Requirements of the Federal Clean Air Act Amendments of 1990 (1993), online at http://yosemite.epa.gov/ee/epa/eed.nsf/ 41565cd88a5ab1a3852575a6006ab35e/ffb36a83831bd004852575a7005e9357!OpenDocument (visited May 15, 2014).
91. See generally Dennis Guignet, What Do Property Values Really Tell Us? A Hedonic Study of Underground Storage Tanks, 81 Land Econ 211 (2013).
92. See generally Anna Alberini, et al, Willingness to Pay for Mortality Risk Reductions: Does Latency Matter?, 32 J Risk & Uncertainty 231 (2006).
93. These are included in a different database. See NCEE, Regulatory Economic Analyses Inventory, online at http://yosemite1.epa.gov/ee/epa/eed.nsf/webpages/ RegulatoryImpactAnalyses.html (visited May 15, 2014) ("REAI").
94. See Bureau of Labor Statistics, CPI Inflation Calculator, online at http://www.bls.gov/data/inflation-calculator.htm (visited May 15, 2014) ("BLS Inflation Calculator").
95. EPA's proposed budget for "research and innovation" for 2013 was $576 million, of which $81 million is dedicated to Science to Achieve Results (STAR) grants, which funds research economics as well as other fields. EPA, News Release, EPA's FY 2013 Budget Proposal Focuses on Core Environmental and Human Health Protections (Feb 13, 2012), online at http://yosemite.epa.gov/opa/admpress.nsf/324e040292e1e51f85257359003f533a/ d38e604ef465557a852579a3005f4630!OpenDocument (visited May 15, 2014). EPA's funding for economics research is dwarfed by other federal institutions.
96. For an example of a much larger institutional research budget, see National Institute of Health, NIH Awards by Location & Organization, online at http://report.nih.gov/award/index.cfm (visited May 15, 2014).
97. See id. Compare Resources for the Future, A Program of Economics Research on Improving Estimation of Benefits from Reduced Pollution vii-viii (February 1981) (identifying research areas as: improving "econometric- epidemiological methods" aimed at establishing dose-response relationships for human health and environmental contamination; using market data to identify willingness to pay to avoid morbidity and mortality risk; improving survey techniques for stated preference studies; and using surveys for "hard-to-approach categories of benefits" such as visibility and existence value), with Environmental Protection Agency, Environmental Economics Research Strategy ES-3 (Dec 2005) (identifying research areas as valuation of human health benefits, valuation of ecological benefits, compliance behavior, market instruments, and benefits of environmental-information disclosure).
98. An example of the kind of subtle influence the agency has had on the profession is support for the environmental economist A. Myrick Freeman III during the period of time before his publication of The Benefits of Environmental Improvement: Theory and Practice (Resources for the Future 1979), which would become an important touchstone that generated research topics for well over a decade.
99. See V. Kerry Smith, Foreword, in A. Myrick Freeman III, The Measurement of Environmental and Resource Values: Theory and Methods xiii, xiii-xiv (Resources for the Future 2d ed 2003).
100. NCEE, NCEE Working Paper Series (sorted by "Authors"), online at http://yosemite.epa.gov/ee/epa/eed.nsf/webpages/WorkingPapersByAuthor.html (visited May 15, 2014).
101. See, for example, Environmental Protection Agency, Air Pollutant Emission Standards and Guidelines for Municipal Waste Combustors: Revision and Update of Economic Impact Analysis and Regulatory Impact Analysis 4-1 to -13 (Nov 1990).
102. For example, a 1978 report on "air pollutant control techniques for phosphate rock processing industry" by a contractor in service of the Office of Air Quality Planning and Standards was part of an effort to facilitate state and local regulation. See David M. Augenstein, Air Pollutant Control Techniques for Phosphate Rock Processing Industry ii (National Technical Information Service 1978).
103. See Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking 241-53 (ABA 4th ed 2006) (outlining the internal rule-making process).
104. In some ways, this makes OIRA analogous to courts. See, for example, EME Homer City Generation v Environmental Protection Agency, 696 F3d 7, 12 (DC Cir 2012) (reversing the second attempt by EPA to institute emissions trading regime under interstate pollution provision of Clean Air Act), revd and remd Environmental Protection Agency v EME Homer City Generation, L.P., 134 S Ct 1584 (2014).
105. For this reason, OIRA must often rely on outside parties, including regulated industry, to provide information. See Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va L Rev 431, 434 (1989).
106. Office of Information and Regulatory Affairs, Review Counts, online at http://www.reginfo.gov/public/do/eoCountsSearchInit?action=init (visited May 15, 2014) (searched from Jan 1, 1990, to Jan 1, 2010).
107. Thomas O. McGarity, The Internal Structure of EPA Rulemaking, 54 L & Contemp Probs 57, 60-61 (Autumn 1991).
108. For a pessimistic perspective on how EPA's political context has thwarted the success of the agency, see Richard J. Lazarus, The Tragedy of Distrust in the Implementation of Federal Environmental Law, 54 L & Contemp Probs 311, 315-17 (Autumn 1991).
109. See, for example, Friederike Schultz, et al, Strategic Framing in the BP Crisis: A Semantic Network Analysis of Associative Frames, 38 Pub Rel Rev 97, 101-03 (2012) (examining the public relations strategy deployed by BP to reduce reputational harm associated with the 2010 Deepwater Horizon oil spill).
110. See A.C. Pigou, The Economics of Welfare 159-63 (Macmillan 1920) (developing the concept of externalities).
111. See Stephen Nickell, Unemployment and Labor Market Rigidities: Europe versus North America, 11 J Econ Persp 55, 66-67 (Summer 1997) (discussing theories on how employee protection may result in unemployment and providing empirical analysis with mixed results);
112. Henry T.C. Hu, Efficient Markets and the Law: A Predictable Past and an Uncertain Future, 4 Ann Rev Fin Econ 179, 206-07 (2012) (discussing how economic theory interacts with financial regulation).
113. Id. Difficulties include multiple competing goals, a hothouse political atmosphere, and even intentional steps taken by Congress to overload an agency with tasks while undermining its ability to effectively carry out its work. See Terry Moe, The Politics of Bureaucratic Structure, in John E. Chubb and Paul E. Peterson, eds, Can the Government Govern? 267, 275-79 (Brookings 1989).
114. See Christopher Marquis and András Tilcsik, Imprinting: Toward a Multilevel Theory, 7 Acad Mgmt Annals 195, 200-04 (2013).
115. See Samuel P. Hays, Beauty, Health, and Permanence: Environmental Politics in the United States, 1955-1985 527-43 (Cambridge 1987) (examining social and political consequences of second-wave environmental movements).
116. See generally Raanan Lipshitz and Leon Mann, Leadership and Decision Making: William R. Ruckelshaus and the Environmental Protection Agency, 11 J Leadership & Org Stud 41 (2005) (providing history of Ruckelshaus's terms as EPA administrator and examining his leadership style).
117. See Richard T. Carson, Contingent Valuation: A Comprehensive Bibliography and History 3-12 (Elgar 2011).
118. But see Jerry Ellig, Patrick A. McLaughlin, and John F. Morrall III, Continuity, Change, and Priorities: The Quality and Use of Regulatory Analysis across US Administrations, 7 Reg & Governance 153, 154 (2013) (arguing that detailed guidance to agencies has not led to high-quality regulatory analysis).
119. Office of Management and Budget, Interim Regulatory Impact Analysis Guidance, 11 Envir Rptr (BNA) 258 (1981) ("OMB, 1981 Interim Guidance").
120. Office of Management and Budget, Regulatory Impact Analysis Guidance, in Regulatory Program of the United States Government 561 (OMB 1988) ("OMB, 1987 Guidance").
121. Office of Management and Budget, Economic Analysis of Federal Regulations under Executive Order 12866 (Jan 11, 1996), online at http://www.whitehouse. gov/omb/inforeg-riaguide (visited May 15, 2014) ("OMB, 1996 Guidance").
122. See generally Environmental Protection Agency, Guidelines for Performing Regulatory Impact Analysis (Dec 1983) ("EPA, 1983 Guidelines") (including both 1983 and 1991 versions);
123. Office of Management and Budget, Discount Rates to Be Used in Evaluating Time-Distributed Costs and Benefits, Circular No A-94 Revised (Mar 27, 1972).
124. See, for example, Resource and Environmental Economics Laboratory at the University of Wyoming, Regulatory Impact Analysis: Guidance on the Appropriate Rate of Discount 8-20 (1982).
125. Office of Management and Budget, Guidelines and Discount Rates for Benefit-Cost Analysis of Federal Programs, Circular A-94, 8-12 (Oct 29, 1992) (including a discussion of best practices for cost-benefit analysis that somewhat tracks the OMB's 1987 guidance).
126. See also Thomas Sterner and U. Martin Persson, An Even Sterner Review: Introducing Relative Prices into the Discounting Debate, 2 Rev Envir Econ & Pol 61, 68 (2008).
127. See generally Tayler H. Bingham and Allen K. Miedema, Allocative and Distributive Effects of Alternative Air Quality Attainment Policies (Research Triangle Institute 1974). A second study, funded in the same year, examined how government assistance could be used to help ease local employment shocks associated with environmental regulation.
128. See generally A. Myrick Freeman III, Evaluation of Adjustment Assistance Programs with Application for Pollution Control (EPA 1974).
129. See, for example, Letter from Wesley P. Warren, Senior Fellow for Environmental Economics, Natural Resources Defense Council, to Lorraine Hunt, Office of Information and Regulatory Affairs (May 5, 2003) (on file with author).
130. See generally Environmental Protection Agency, Children's Health Valuation Handbook (2003).
131. See generally Environmental Protection Agency, Handbook for Non-cancer Health Effects Valuation (Dec 2000).
132. See generally Environmental Protection Agency, Assessing the Benefits of Drinking Water Regulations: A Primer for Stakeholders (2002).
133. See, for example, Environmental Protection Agency, Office of Air Quality Planning and Standards, OAQPS Economic Analysis Resource Document 1-1 to -2 (1999).
134. See generally, for example, ICF Incorporated, Baseline Concepts for Regulatory Impact Analysis (1982).
135. E.J. Mishan, Evaluation of Life and Limb: A Theoretical Approach, 79 J Polit Econ 687, 687-88 (1971) (noting "repeated expressions of dissatisfaction with the [human- capital] method").
136. See T.C. Schelling, The Life You Save May Be Your Own, in Samuel B. Chase, ed, Problems in Public Expenditure Analysis 127, 148-58 (Brookings 1968) (discussing alternative valuation methods).
137. See Cass R. Sunstein, Lives, Life-Years, and Willingness to Pay, 104 Colum L Rev 205, 206 (2004).
138. See Michael J. Moore and W. Kip Viscusi, The Quantity-Adjusted Value of Life, 26 Econ Inquiry 369, 373 (1988).
139. Leigh Harrington, The Valuation of the Life Shortening Aspects of Risk 1 (Sept 17, 1984), online at http://yosemite.epa.gov/ee/epa/eerm.nsf/vwAN/EE-0297. pdf/$file/EE-0297.pdf (visited May 15, 2014).
140. Environmental Protection Agency, Science Advisory Board, Advisory Council for Clean Air Compliance Analysis, Review of the Draft Analytical Plan for EPA's Second Prospective Analysis - Benefits and Costs of the Clean Air Act, 1990-2020 26 (September 2001). OIRA revisited the issue of life-years in its 2003 A-4 Circular.
141. See Environmental Protection Agency, Technical Addendum: Methodologies for the Benefit Analysis of the Clear Skies Act of 2003 38-39 (Sept 2003);
142. Environmental Protection Agency, Control of Emissions from Nonroad Large Spark-Ignition Engines, and Recreational Engines (Marine and Land-Based), 67 Fed Reg 68242 (Nov 8, 2002). Senior administration officials, notably then OIRA Administrator John Graham, had been proponents of the life-years approach.
143. See generally John D. Graham and Jianhui Hu, Using Quality Adjusted Life Years in Regulatory Analysis: Definitions, Methods, Applications and Limitations (Canada 2008).
144. Letter from David Certner, Director of Federal Affairs, AARP, to Lorraine Hunt, Office of Information and Regulatory Affairs (May 5, 2003), online at http://www.whitehouse.gov/sites/default/files/omb/inforeg/2003report/346.pdf (visited May 15, 2014).
145. See generally Richard Thaler and Sherwin Rosen, The Value of Saving a Life: Evidence from the Labor Market, in Nestor E. Terleckyj, ed, Household Production and Consumption 265 (Columbia 1976).
146. See generally Daniel M. Violette and Lauraine G. Chestnut, Valuing Risks: New Information on the Willingness to Pay for Changes in Fatal Risks (Feb 1986) (updating a 1983 study);
147. Daniel M. Violette and Lauraine C. Chestnut, Valuing Reductions in Risks: A Review of the Empirical Estimates (June 1983).
148. This list had been used previously by EPA. See Environmental Protection Agency, The Benefits and Costs of the Clean Air Act, 1970 to 1990 45 (1997).
149. For both analyses, EPA drew the list of studies from W. Kip Viscusi's work. See W. Kip Viscusi, Fatal Tradeoffs: Public and Private Responsibilities for Risk 52-54 (Oxford 1992).
150. NCEE, Valuing Mortality Risk Reductions for Environmental Policy: A White Paper *4 (SAB Review Draft, Dec 2010), online at http://yosemite.epa.gov/ ee/epa/eerm.nsf/vwAN/EE-0563-1.pdf/$file/EE-0563-1.pdf (visited May 14, 2014).
151. Department of Transportation, Revised Departmental Guidance: Treatment of the Value of Preventing Fatalities and Injuries in Preparing Economic Analyses *2 (Feb 2008), online at http://www.faa.gov/regulations-policies/policy- guidance/benefit-cost/media/ Revised%20Value%20Of%20Life%20Guidance%20Feburary%202008.pdf (visited May 15, 2014).
152. Office of Management and Budget, 2012 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities 18 n 20 (2012).
153. See Letter from Michael A. Livermore and Jason A. Schwartz, Institute for Policy Integrity, New York University School of Law, to Office of Information and Regulatory Affairs Administrator Cass Sunstein 7-9 (June 11, 2012), online at http://www.whitehouse.gov/sites/default/files/omb/inforeg/2012-cb/comments/ ipi-2012-draft-report-to-congress-comments.pdf (visited May 15, 2014).
154. See Charles Brown, Equalizing Differences in the Labor Market, 94 Q J Econ 113, 131-33 (1980).
155. See, for example, V. Kerry Smith, William H. Desvousges, and Matthew P. McGivney, The Opportunity Cost of Travel Time in Recreation Demand Models, 59 Land Econ 259, 260-62 (1983).
156. See, for example, John Loomis, Shizuka Yorizane, and Douglas Larson, Testing Significance of Multi-destination and Multi-purpose Trip Effects in a Travel Cost Method Demand Model for Whale Watching Trips, 29 Ag & Res Econ Rev 183, 183-85 (2000).
157. See, for example, William H. Desvouges and V. Kerry Smith, The Travel Cost Approach for Valuing Improved Water Quality: Additional Considerations 1-4 to -5 (1984).
158. See Tom Crowards, Nonuse Values and the Environment: Economic and Ethical Motivations, 6 Envir Values 143, 143-45 (1997).
159. See Richard T. Carson, et al, Contingent Valuation and Lost Passive Use: Damages from the Exxon Valdez Oil Spill, 25 Envir & Res Econ 257, 278 (2003).
160. Richard T. Carson and W. Michael Hanemann, Contingent Valuation, in Karl-Göran Mäler and Jeffrey R. Vincent, eds, 2 Handbook of Environmental Economics 821, 826 (Elsevier 2005). This piece provides a very useful overview and introduction to contingent valuation, its history, and current issues.
161. Clifford S. Russell, Thirty Years of Water and Environmental Economics, 116 J Contemp Water Rsrch & Educ 67, 69 (2000).
162. Environmental Goods: A State of the Arts Assessment of the Contingent Valuation Method 2 (Institute for Policy Research 1986).
163. See generally Robert Cameron Mitchell and Richard T. Carson, The Use of Contingent Valuation Data for Benefit/Cost Analysis in Water Pollution Control (1986).
164. See generally Robert Cameron Mitchell and Richard T. Carson, Using Surveys to Value Public Goods: The Contingent Valuation Method (Resources for the Future 1989).
165. Ronald G. Cummings and Laura L. Osborne, Valuing Environmental Damages with Stated Preference Methods: New Approaches that Yield Demonstrably Valid Values for Non-priced, Environmental Goods (1996), online at http://yosemite.epa.gov/ee/epa/eed.nsf/025a7218b79687da852575a6006ab361/ 6491a74cfb755fee852575a7005e9315!OpenDocument (visited May 15, 2014).
166. William Schulze, et al, Can Contingent Valuation Measure Passive-Use Values? 28-62 (1999).
167. See generally George Van Houtven and V. Kerry Smith, Valuing Reductions in Environmental Sources of Infertility Risk Using the Efficient Household Framework (1997).
168. Environmental Protection Agency, Office of Water, Economic and Environmental Benefits Analysis of the Final Effluent Limitations Guidelines and New Source Perfor mance Standards for the Concentrated Aquatic Animal Production Industry Point Source Category 8-18 n 23 (2004).
169. One recent agency-funded project includes a willingness-to-pay survey in the Adirondack Mountains and the Southern Appalachian Mountain region to estimate values for reductions in ecological harms associated with acid rain. See Environmental Protection Agency, 2008 Progress Report: Valuation of Regional Ecological Response to Acidification and Techniques for Transferring Estimates, online at http://cfpub.epa.gov/ncer-abstracts/index.cfm/fuseaction/display. abstractDetail/abstract/7726/report/2008 (visited May 15, 2014).
170. See generally Environmental Protection Agency, National Pollutant Discharge Elimination System - Cooling Water Intake Structures at Existing Facilities and Phase I Facilities, 76 Fed Reg 22174 (2011).
171. Environmental Protection Agency, National Pollutant Discharge Elimination System - Proposed Regulations to Establish Requirements for Cooling Water Intake Structures at Existing Facilities; Notice of Data Availability Related to EPA's Stated Preference Survey, 77 Fed Reg 34927, 34929 (2012).
172. quoting John C. Bergstom and Richard C. Ready, What Have We Learned From over 20 Years of Farmland Amenity Valuation Research in North America?, 31 Rev Ag Econ 21, 26 (2009).
173. Memorandum from Tyler D. Duvall, Assistant Secretary for Transportation Policy to Secretarial Officers and Modal Administrators *1 (Feb 5, 2008)
174. See Lisa Robinson, Valuing Mortality Risk Reductions in Homeland Security Regulatory Analyses 12-16 (2008).
175. DHS has used the $6.3 million figure in breakeven analyses. Department of Homeland Security, Passenger Weight and Inspected Vessel Stability Requirements, 75 Fed Reg 78064, 78079 (2010);
176. Department of Homeland Security, Carbon Dioxide Fire Suppression Systems on Commercial Vessels, 77 Fed Reg 33860, 33868 (2012).
177. See generally Letter from Michael A. Livermore, et al, Institute for Policy Integrity to Robert Hinchman, Office Legal Policy, Department of Justice (Apr 4, 2011), online at http://policyintegrity.org/documents/Policy-Integrity- PREA-Comments-4-4-11.pdf (visited May 15, 2014) (regarding the proposed rule making).
178. Department of Justice, National Standards to Prevent, Detect, and Respond to Prison Rape, 77 Fed Reg 37106, 37106 (2012) (issuing the rule for final administrative review).
179. Department of Justice, Prison Rape Elimination Act Regulatory Impact Assessment 39 (2012).
180. DOJ faced criticism for this move. See Lisa Heinzerling, Cost-Benefit Jumps the Shark: The Department of Justice's Economic Analysis of Prison Rape, Georgetown Law Faculty Blog (June 13, 2002), online at http://gulcfac.typepad. com/georgetown-university-law/2012/06/cost-benefit-jumps-the-shark.html (visited May 15, 2014).
181. But see Rick Hills, In Defense of Cost-Benefit Analysis: Lesson from Recent Rules for Preventing Prison Rape, PrawfsBlawg (June 16, 2012), online at http://prawfsblawg.blogs.com/prawfsblawg/2012/06/in-defense-of-cost-benefit- analysis-lessons-from-recent-rules-for-preventing-prison-rape.html (visited May 15, 2014).
182. Id at 40, citing Mark A. Cohen, et al, Willingness-to-Pay for Crime Control Programs, 42 Criminol 89, 98 (2004).
183. Center for Biological Diversity v National Highway Traffic Safety Administration, 508 F3d 508, 533 (9th Cir 2007), vacd 538 F3d 1172 (9th Cir 2008).
184. Center for Biological Diversity, 508 F3d at 533.
185. In addition, many environmental rules that are not directly targeted at greenhouse gas emissions have the "ancillary benefit" of reducing emissions, which should also be accounted for in cost-benefit analyses of those rule makings. See Dallas Burtraw and Michael A. Toman, Estimating the Ancillary Benefits of Greenhouse Gas Mitigation Policies in the US, in Organisation for Economic Co-operation and Development, Ancillary Benefits and Costs of Greenhouse Gas Mitigation 481, 482-84 (2000).
186. Interagency Working Group on Social Cost of Carbon, United States Government, Appendix 15A: Social Cost of Carbon for Regulatory Impact Analysis under Executive Order 12866 1 (2010) ("SCC Taskforce").
187. The taskforce was first mentioned in a Department of Energy rule making concerning energy-efficiency requirements for vending machines. Letter from Institute for Policy Integrity and Environmental Defense Fund (EDF) to Environmental Protection Agency Administrator Lisa Jackson (Nov 27, 2009), online at http://policyintegrity.org/documents/SCC-Comments-EPAFINAL.pdf (visited May 15, 2014).
188. See William D. Nordhaus, Managing the Global Commons: The Economics of Climate Change 7-21 (MIT 1994)
189. See Charles K. Rowley and Robert Elgin, Government and Its Bureaucracy: A Bilateral Bargaining versus a Principal-Agent Approach, in Charles K. Rowley, Robert D. Tollison, and Gordon Tullock, eds, The Political Economy of Rent Seeking 267, 285-88 (Kluwer 2010);
190. Gary J. Miller, The Political Evolution of Principal-Agent Models, 8 Ann Rev Polit Sci 203, 207-08 (2005);
191. But see William A. Niskanen Jr, Bureaucracy and Representative Government 45-77 (Aldine 1971) (offering monopoly supplier model of agencies);
192. Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government 81-101 (Princeton 2008) (arguing that the structure of administrative law is designed to balance participation and limit the dominating influence of special interests in regulatory proceedings).
193. See Eugene F. Fama and Michael C. Jensen, Separation of Ownership and Control, 26 J L & Econ 301, 302-03 (1983) (describing how separation of ownership and management gives rise to principal-agent problem in business firms).
194. Jean Tirole, Hierarchies and Bureaucracies: On the Role of Collusion in Organizations, 2 J L, Econ & Org 181, 187-205 (1986) (showing that a simple model of principal-agent-supervisor generates complex potential coalitions).
195. Daniel B. Rodriguez, The Positive Political Dimensions of Regulatory Reform, 72 Wash U L Q 1, 39-40 (1994) (noting that "decisionmakers in public agencies are involved in a myriad of different relationships" more complex than the principal-agent model implies).
196. See Donald P. Moynihan and Alasdair S. Roberts, The Triumph of Loyalty over Competence: The Bush Administration and the Exhaustion of the Politicized Presidency, 70 Pub Admin Rev 572, 573-74 (2010);
197. David J. Barron, From Takeover to Merger: Reforming Administrative Law in an Age of Agency Politicization, 76 Geo Wash L Rev 1095, 1097 (2008) (arguing that politicization is a fact that must be taken into account in administrative law scholarship).
198. But see Robert F. Durant and William G. Resh, " Presidentializing" the Bureaucracy, in Robert F. Durant, ed, The Oxford Handbook of American Bureaucracy 545, 561-62 (Oxford 2011) (questioning the efficacy of politicization as a control mechanism).
199. See, for example, Barry R. Weingast and Mark J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J Polit Econ 765, 792 (1983) (arguing that congressional committees exert considerable influence over agencies).
200. See James P. Pfiffner, Political Appointees and Career Executives: The Democracy-Bureaucracy Nexus in the Third Century, 47 Pub Admin Rev 57, 60 (1987) (referring to political appointees as "birds of passage").
201. As noted by Professor Jodi Short, "[a]gencies are disciplined not solely by the constraints of rationality, legal doctrine, and political power, but also by the social and institutional environments in which they are embedded." Jodi L. Short, The Political Turn in American Administrative Law: Power, Rationality, and Reasons, 61 Duke L J 1811, 1816 (2012).
202. An important component of genuine deliberation is the ability of participants to change their preferences based on new information. See James S. Fishkin, When the People Speak: Deliberative Democracy and Public Consultation 39 (Oxford 2009) (stating that "[d]eliberation requires that participants sincerely weigh the issues on their merits [and]. . decide in the end on the basis of the force of the better argument") (quotation marks omitted);
203. Joshua Cohen, Deliberation and Democratic Legitimacy, in Alan Hamlin and Philip Pettit, eds, The Good Polity: Normative Analysis of the State 17, 22 (Blackwell 1989) (describing ideal deliberative procedure as one in which participants "state their reasons. . with the expectation that those reasons. . will settle the fate of their proposal").
204. Professors Terry Moe and Scott Wilson discuss the ability of presidents, through their personnel choices, to "produce a genuine team," in which "opportunism and conflict of interest are greatly reduced." Terry M. Moe and Scott A. Wilson, Presidents and the Politics of Structure, 57 L & Contemp Probs 1, 16-17 (Spring 1994).
205. Grace Hall Saltzstein, Bureaucratic Responsiveness: Conceptual Issues and Current Research, 2 J Pub Admin Rsrch & Theory 63, 69-76 (1992) (clarifying definition of responsiveness and discussing empirical work in the area).
206. An example of a problem-solving challenge that was badly misperceived as a political contest was a portion of an EPA rule making on nitrogen dioxide. Professor Rena Steinzor argued at the time that OIRA had "weakened" the rule and that "[t]he consequences for the public health are real." Rena Steinzor, EPA's New NO2 Rule: A Tale of OMB Interference, CPRBlog (Center for Progressive Reform Jan 29, 2010), online at http://www.progressivereform. org/CPRBlog.cfm?idBlog=7B6070A2-E4D9-CEE5-4D6EF5DF5B19FB12 (visited May 15, 2014). The issue was the number and placement of roadside monitors for the pollutant, which is primarily associated with automobiles. OMB had asked the agency to consider raising the threshold size for a community to receive a monitor from 350,000 to 500,000 people. Ultimately, EPA agreed with OIRA and used the remaining monitoring stations to target specific vulnerable communities. Gina McCarthy, then Assistant Administrator for Air at EPA, was quoted as saying that the change avoided placing monitors "in the middle of nowhere" and that it allowed the agency to "design the monitoring system in a better way than we had proposed.
207. " Brad Johnson, EPA Official: OMB Involvement in NO2 Standard Was a "Significant Win" for Public Health, Climate Progress Blog (Feb 12, 2010), online at http://thinkprogress.org/climate/2010/02/12/174563/epa-omb-no2- win (visited May 15, 2014).
208. See Matthew C. Stephenson, Information Acquisition and Institutional Design, 124 Harv L Rev 1422, 1452 (2011) (noting how institutional design, including "a system in which the agent's freedom of action is conditional on the agent's research effort," can generate incentives for information production).
209. See also Emerson H. Tiller, Resource-Based Strategies in Law and Positive Political Theory: Cost-Benefit Analysis and the Like, 150 U Pa L Rev 1453, 1457-58 (2002) (arguing that Congress imposes analytic burdens as a way to increase decision costs for disfavored agencies).
210. See Richard Lazarus, The National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek behind the Curtains, 100 Georgetown L J 1507, 1536-65 (2012) (demonstrating how the National Environmental Policy Act has influenced government decision making).
211. Elizabeth Magill and Adrian Vermeule, Allocating Power within Agencies, 120 Yale L J 1032, 1051 (2011).
212. Of course, even scientific fact is not free from political influence. See, for example, 60 Minutes: Rewriting the Science (CBS Television Broadcast Mar 19, 2006) (examining the role of the White House in suppressing public disclosure of agency scientific findings relating to climate change during the George W. Bush administration).
213. See Michael A. Livermore, Can Cost-Benefit Analysis Go Global?, 19 NYU Envir L J 146, 150-53, 178, 184-87 (2012) (discussing metrics that can be used in cost-benefit analysis).
214. See John Bronsteen, Christopher Buccafusco, and Jonathan S. Masur, Well-Being Analysis vs. Cost-Benefit Analysis, 62 Duke L J 1603, 1617 (2013).
215. See Matthew D. Alder, Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis 61 (Oxford 2011).
216. Martha C. Nussbaum, Capabilities and Human Rights, 66 Fordham L Rev 273, 279-85 (1997);
217. Amartya Sen, Capability and Well-Being, in Martha Nussbaum and Amartya Sen, eds, The Quality of Life 30, 31-32 (Clarendon 1993).
218. The UN Human Development Index is strongly informed by Sen's capabilities approach. See United Nations Development Programme, The Real Wealth of Nations: Pathways to Human Development 13-14 (2010) (providing assessment of several factors meant to replace gross domestic product as a measure of development).
219. B. Guy Peters, Governing from the Centre(s): Governance Challenges in the United States, in Carl Dahlström, B. Guy Peters, and Jon Pierre, eds, Steering from the Centre: Strengthening Political Control in Western Democracies 123, 133 (Toronto 2011)
220. Shelly Lynne Tomkin, Inside OMB: Politics and Process in the President's Budget Office 11 (Sharpe 1998).
221. Bruce Ingersoll, Burford Out; Agency Is in 'a Shambles,' Spokane Chronicle 1 (Mar 10, 1983) (describing the resignation of Reagan's first EPA Administrator, whose tenure was characterized by strong internal and external opposition).
222. This need not have been an intentional choice on the part of the drafters; indeed, it would have taken considerable foresight on their part to anticipate how this system would develop. See Milton Friedman, Essays in Positive Economics 21-22 (Chicago 1953) (providing the famous billiard-player example to illustrate that behavior need not be intentional to be described through rationality conditions).
223. See generally Steven G. Calabresi and Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale 2008) (arguing that from the time of the founding, presidents have sought to impose their will on the executive branch).
224. See Eric A. Posner and Matthew D. Adler, New Foundations of Cost-Benefit Analysis 25-39 (Harvard 2006).
225. See Michael A. Livermore and Richard L. Revesz, Three Stages in the Use of Cost-Benefit Analysis as a Tool for Evaluating U.S. Regulatory Policy 5 (Max Weber Lecture No 2012/05)
226. quoting Mitt Romney, Believe in America: Mitt Romney's Plan for Jobs and Economic Growth 55 (2011).
227. Danny Hakim, Cuomo for President? Who Said That? Well, Dad, NY Times A1 (July 8, 2012).
228. Michael E. Levine and Jennifer L. Forrence, Regulatory Capture, Public Interest, and the Public Agenda: Toward a Synthesis, 6 J L, Econ & Org 167, 167-72 (1990) (proposing that agencies may pursue private interests, the true public interest, or idiosyncratic views of the public interest);
229. Joseph P. Kalt and Mark A. Zupan, Capture and Ideology in the Economic Theory of Politics, 74 Am Econ Rev 279, 298 (1984).
230. See, for example, Rachel E. Barkow, Insulating Agencies: Avoiding Capture through Institutional Design, 89 Tex L Rev 15, 21 n 23 (2010) (defining capture and citing several prominent sources).
231. See, for example, B. Dan Wood and Richard W. Waterman, Bureaucratic Dynamics: The Role of Bureaucracy in a Democracy 1-11 (Westview 1994);
232. This issue may be overblown if certain types of information included in a costbenefit analysis, such as "order-of-magnitude judgments," can be digested by the public. Nathaniel O. Keohane, The Technocratic and Democratic Functions of the CAIR Regulatory Analysis, in Winston Harrington, Lisa Heinzerling, and Richard D. Morgenstern, eds, Reforming Regulatory Impact Analysis 33, 48 (Resources for the Future 2009).