PUBLIC CITIZEN Buyers Up Congress Watch Critical Mass Health Research Group Litigation Group December 6, 1988 RESPONSE TO ADDITIONAL QUESTIONS POSED TO JOAN CLAYBROOK, PRESIDENT, PUBLIC CITIZEN, AND DAVID VLADECK, SENIOR ATTORNEY, PUBLIC CITIZEN LITIGATION GROUP BY SENATOR JOHN GLENN REGARDING THE COMMITTEE ON GOVERNMENTAL AFFAIRS' OCTOBER 3, 1988 HEARING ON REGULATORY REFORM In accordance with Senator Glenn's request for comments on a number of questions relating to our testimony before the Committee on October 3, we hereby submit the following response to the questions presented. Rather than restate each question, we have followed the numbering used by the Committee. Response to Question 1: This question seeks information about OMB's new practice of making public drafts of proposed and final rules, and agency agendas, following the issuance of final rules and final agency agendas. The question requests information about whether OMB is, in fact, complying with these requirements and whether these drafts are useful for those interested in following the regulatory process. Insofar as we are aware, OMB has, in general, been adhering to the policy of making drafts available to the public once the agency's action is final. However, the value of these disclosures has thus far been quite minimal. Insofar as we can determine, it appears that the draft made public by OMB is not necessarily the agency's original views on a particular problem, but rather, more often than not, is a draft that reflects some negotiations between OMB and the agency. Thus, it appears that agencies only submit "drafts" to OMB after agency officials and OMB designated officials have reached at least a tacit understanding about the major issues to be addressed in the rule. As a result, the drafts that are revealed to the public reflect some significant degree of OMB involvement, and are certainly not the unfiltered views of the expert agency. We do not know how often such written requests are made. Response to Question 2: Before turning to the part of this question which relates to whether it would be possible to bring litigation arising under Executive Order 12498, it is imperative to address the first sentence of the question, which states that it is unfortunate that courts have been setting regulatory deadlines for agencies. We disagree. Under the case law establishing the doctrine of unreasonable delay, it is, in fact, quite difficult for a plaintiff alleging unreasonable delay to obtain any relief at all. Indeed, it is only in the rare case that courts have, in fact, imposed deadlines on agencies. More frequently, courts allow the agency to follow whatever timetable the agency sees fit even if the court is troubled that the delay is harming the public interest. Turning to the second part of the question, we have not litigated any cases arising under Executive order 12498, nor are 92-644-89 - 13 we aware of any such litigation brought by anyone else. There are many problems that would be faced in challenging an agency decision or non-decision made under Executive Order 12498. First, of course, there is a standing question. It would be difficult in most cases for a plaintiff to allege a direct and palpable harm that flowed simply from an agency's priority setting under 12498. A related problem stems from the fact that generally one can only challenge final agency action. While a decision to not take action, or to not pursue an important issue might be reviewable, the standards that courts apply in such cases are generally hostile to the plaintiff. The real remedy for the problems presented by the Executive Order is legislation, not litigation. Response to Question 3: The third question raises the interesting question of whether Executive Order 12498 conflicts with the Administrative Procedures Act ("APA"). In our judgment, there is a substantial argument that it does, though once again, we are unaware of any litigation raising this question. The heart of the concern expressed in your question is whether Executive Order 12498, which directs every executive branch agency to engage in priority setting totally outside of public view until it has received OMB's approval, conflicts with the basic principle of the APA that the public should have an opportunity to play a role in all critical decisions by administrative agencies. We certainly agree that in terms of their philosophical underpinnings, Executive Order 12498 and the APA collide head on. However, it is nowhere near as clear that there is a specific violation of the Administrative Procedures Act. After all, agencies are afforded broad discretion in their priority setting and the APA provides no right of public participation until the agency publishes a notice of proposed rulemaking. Thus, while we share the Committee's concern that the secrecy demanded by Executive Order 12498 may serve to subvert the openness required by the APA, we are far from certain that there is a specific violation of any particular provision of the APA. Response to Question 4: This question raises perhaps the most difficult policy issue posed by Executive Order 12498; namely, whether there is some value to allowing the Executive Branch to communicate internally without public disclosure. We can all agree that there are limited occasions when it would be counterproductive to require Executive Branch officials to operate in a fish bowl. And, we do not quarrel with the general proposition that at some level, discourse within the Executive Branch should be protected to encourage full and frank deliberation. Thus, we agree with the thrust of the Committee question that at bottom, the issue here is one of line drawing. We part company, however, with the fundamental directive contained in Executive Order 12498 which categorically cuts off public discussion of the development of priorities. There is nothing inconsistent with allowing the Executive Branch some freedom for internal debate while at the same time soliciting and encouraging the public to participate in that debate. We recognize that the Executive Branch, including OMB, should be allowed to discuss regulatory options shielded from public view before setting an agency's agenda internally. But that does not address the question of whether public comment should be permitted to provide an additional basis upon which the Executive Branch can make its priority determinations. Public participation does not necessarily mean an end to internal Executive Branch deliberation. However, in fulfillment of OMB's 1986 commitment to reveal the agency draft position on priorities, this draft should reflect internal agency discussions without imposition of OMB's views. Response to Question 5: This question asks our view as to whether the fact that Executive Order 12498 does not extend to independent agencies undermines its effectiveness. The answer, we believe, is that to the extent the Executive Order can be justified on grounds of coordination, the fact that it is limited to executive agencies does hinder, to some minor degree, its functions. However, on the other hand, there are powerful constitutional reasons why it would be inappropriate to extend the dictates of Executive order 12498 to independent agencies. Hence, even if we agreed that the goals embodied in Executive Order 12498 which we do not would still have serious reservations about extending it to the - -- we |