The main conceptual goal of this article is to draw attention to the phenomenon of common regulatory space and highlight the urgent need for inter-institutional coordination as a response. His article argues that interagency coordination is one of the central challenges of modern governance.
LEGISLATIVE DELEGATIONS AND THE INEVITABLE COORDINATION
Explaining Congressional Delegations to Multiple Agencies
27 The half-lens area within the triangle represents the players' "zone of agreement." The bold portion of the line between x and x represents a set of expected points to which both Agency i and Agency 2 would agree if both had authority to address the problem within the space legislators would find acceptable in advance. It is an unavoidable simplification of the model that the ideal agency preference is represented by a single point.
Redundancy Versus Shared Regulatory Space......................................................"1145
DEP'T OF THE TREASURY, PLAN FOR A MODERNIZED FINANCIAL REGULATORY STRUCTURE 1I (2008) (proposing consolidation of CFTC and SEC). 89 Many of the Brownlow Committee's recommendations were adopted by Congress in the Reorganization Act of 1939, Pub.
Interagency Consultation
M andatory Consultation
One of the strongest mandatory consultation provisions is Section 7 of the ESA, which requires federal agencies to consult with the federal fish and wildlife agencies responsible for administering the law to ensure that their proposed major actions are "not likely to endanger will come". Congress could accomplish the same thing through generic analytical or disclosure requirements, which in practice require an action agency to conduct interagency consultations. A good example is the National Environmental Policy Acts (NEPA), which requires federal agencies to prepare a detailed environmental impact statement for major federal actions that “significantly impact the quality of the human environment.” NEPA has been interpreted into regulations over time. promulgated by the Council on Environmental Quality and in court decisions, to require much more than a cursory disclosure of environmental impacts.'7 In practice, the disclosure process serves as a means of soliciting input from numerous agencies.'i8.
154, x W] while the biological opinion of the service theoretically has an "advisory function", in reality it has a strong coercive effect on the action agency. 34; agency as regulator" and contrast it with the weaker "agency as lobbyist" model exemplified by the consultation provision of the National Environmental Policy Act, 42 U.S.C. 118. Both ESA and NEPA are somewhat difficult to rank along the spectrum of relative burden for an action agency.
Some hearing provisions explicitly require the action agency to publicly respond to the interested agency's proposal. For example, section 21 of FIFRA requires EPA to request opinions from the Secretary of Agriculture and the Secretary of Health and Human Services before issuing regulations to administer the Act.119 If these agencies respond in writing within 30 days to EPA's request, EPA will must publish those comments and its own response along with its final rule in the Federal Register.120 Without dictating the outcome, this type of hearing provision requires the action agency to at least engage with the consulting agencies' views and provide a credible discussion of their merits, by put reasonings on the record which could later be subject to arbitrary and capricious control by the courts.'2'.
Default Position Requirements
discussing the joint rulemaking authority of the SEC and the CFTC under the Commodity Futures Modernization Act). QUALITY, FINAL RECOMMENDATIONS OF THE INTERAGENCY OCEAN POLICY TASK FORCE (20o0), available at http://www.whitehouse.gov/files/documents/OPTF_FinalRecs.pdf. Saiger, Obama's Domestic Policy 'Czars' and the White House Staff Law, 79 FORDHAM L.
Independent agencies are not subject to the statutory review provisions of the order and do not normally participate in the interagency review process. OFFICE OF THE PRESIDENT, CIRCULAR A-4, REGULATORY ANALYSIS (2003) [hereinafter OMB CIRCULAR A-4], available at http://www.whitehouse.gov/. RL323 97, FEDERAL RULEMAKING: THE ROLE OF THE OFFICE OF INFORMATION AND REGULATORY AFFAIRS (2oog), available at http://www.fas.org/sgp/crs/misclRL32397.pdf.
And to the extent that coordination tools enable such compromises, they help achieve one of the purported goals of functional fragmentation. This suggests that coordination can help advance one of the key goals of functional fragmentation, namely to improve the accountability of the agencies to their political principals.
Concurrence Requirements ................................................................................. r 16o
Joint Policym aking
EPA-N H TSA Joint Rule
The standards apply to passenger cars and light trucks and consist of estimated combined average emissions levels and fuel economy levels. Greenhouse gas emission standards for light-duty vehicles and average fuel economy standards for companies; Last line, 75 Fed. The joint rule increases Corporate Average Fuel Economy (CAFE) standards to achieve an estimated fleet-wide average of 35.5 miles per gallon or 250 grams per mile of carbon dioxide by 2oz6.
182 The agencies use computer models to estimate the costs and benefits to producers, consumers, and society of alternative stringent standards. GOv'T ACCOUNTABILITY OFFICE, GAO-07-921, VEHICLE FUEL ECONOMY: REFORMING FUEL ECONOMY STANDARDS COULD HELP REDUCE OIL CONSUMPTION IN CARS AND LIGHT TRUCKS AND OTHER OPTIONS COULD COMPLEMENT THIS STANDARD (2s09 list) paid by European automakers instead for compliance). In addition, the joint rulemaking led the agencies to pool resources and share expertise, and it provided a forum for designing workable program elements and addressing important legal issues.
DEP'T OF TRANSP., FINAL RULES ESTABLISHING LIGHT-DUTY VEHICLE GREENHOUSE GAS EMISSION STANDARDS AND CORPORATION-AVERAGE FUEL ECONOMY STANDARDS: JOINT TECHNICAL SUPPORT DOCUMENT (2010) available at http://vwww.oms/epa. climate/regulations/42oriogoi.pdf. 193 Proposed Rules to Establish Light Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards, 74 Fed.
Presidential Management of Coordination
R egulatory R eview
228 The Domestic Policy Council is responsible for coordinating domestic policy-making processes in the White House. 232 Mission and Structure of the Office of Management and Budget, THE WHITE HOUSE, http://www.whitehouse.gov/omb/organization-mission (last visited Jan. 29, 2012). Executive Order 12.866 also authorizes OIRA to review certain agency regulatory actions to ensure that their benefits justify their costs.242 Under the order, executive branch agencies must submit "significant" regulatory actions to OIRA before they are published in the Federal Register.243 the order identifies significant regulatory measures as.
241 Executive Order 12,866 states: “At the beginning of each year's planning cycle, the Vice President shall convene a meeting of the Advisors [a set of regulatory policy advisors to the President] and the heads of agencies to pursue a common understanding of the priorities and regulatory efforts to be accomplished in the coming year." ID card. 4(c)(s), and the Vice President, with the assistance of the Advisors, shall have the authority to appoint the heads of agencies and to "request further consultation or coordination among the agencies," id. The executive order and OMB Circular A-4 explain that the monetized benefits of a rule need not exceed the monetized costs; the costs of the rule may only be.
One of the stated purposes of the executive order is to ensure that agencies act consistently with each other.249 This is entirely consistent with OIRA's mission, e.g. to request agencies to consider how coordination can reduce regulatory costs and thus make coordination a relay. - major considerations when reviewing the agency's cost-benefit analyses. As a description of the EOP apparatus, this summary is incomplete.2s1 Still, it illustrates the primary mechanisms by which the president may seek to promote coordination across the executive branch and, to a limited extent, among independent agencies.
ASSESSING AGENCY COORDINATION INSTRUMENTS
We noted that many EOP offices and boards are established by law and their leaders must be confirmed by the Senate; this shows that the president neither fully controls nor unilaterally installs the definition of his staff's duties. Nevertheless, because these officials are appointed by the president and charged with carrying out his policy prerogatives, they are ultimately accountable to him.
Efficiency, Effectiveness, and Accountability
- Impacts of Coordination on Agency Expertise and Decision Quality
- Impacts of Coordination on Arbitrage and Capture
- Impacts of Coordination on Drift
- Impacts of Coordination on Transparency
Coordination tools can help agencies manage overlapping agency functions or related jurisdictional tasks in ways that improve both cumulative expertise and the quality of the final agency decision. At a minimum, interagency consultations, signed agreements, joint policy-making exercises, and similar instruments allow agencies to hold each other accountable for such behavior. Coordination tools should help stronger agencies empower weaker ones by formally linking them in the regulatory enterprise and by conveying to interest groups that they will need to capture both to succeed.
explaining the risk that an agency could deviate from the interests of the coalition that created the agency). And joint policymaking exercises, in which agencies share information and expertise, position the agencies to keep a close eye on each other. In general, more formal and legally binding coordination instruments should make it relatively more difficult for agencies to shirk their duties because they increase agencies' accountability to each other and, by extension, to Congress.
Coordination can also reduce drift by enabling policy compromises of the kind that Congress envisioned when it delegated authority to multiple agencies in the first place. For a more positive account of the collaborative structure, see Freeman & Farber, supra note 2, at 86o-66.
Matching Coordination Tools to Collective Action Problems
In several of the cases reviewed in Part II, agencies negotiated new MOUs to replace outdated ones (often negotiated by previous administrations)—a clear indication that ineffective MOUs may be hanging on for too long. A larger set of studies, perhaps with the assistance of the Administrative Conference of the United States294, could help integrate and extend this work. We also discuss the role of courts in reviewing agency actions involving coordination.
And OMB changes at that point are, I think, really at the fringes rather than going to the heart of the matter." (internal quotation marks omitted)). internal quotation mark omitted); see also Exec. Scholars disagree on the extent of the President's legal authority to mandate administrative approaches and outcomes when Congress has delegated power to agencies.313 The question is 313 On the one hand are those, such as former professor Elena Kagan, who have a strong view of the President advance its authority to legally bind the discretion of agency officials.
Others, however, take a more modest view of executive power, arguing that the president can request statutory authority only if Congress has specifically granted the authority to him, rather than to the agencies—an approach that could limit the president's power to require agencies to act together where they are not inclined to do so. Some of the reforms we have proposed above seek to improve the transparency of the interagency process, making it easier for both Congress and the public to follow. 212 (2oo2), including "related expertise of the Agency, the importance of the question for the application of the statute,
Continuing on the first step of the Chevron analysis itself, here again the presence or absence of agency coordination seems, on the face of it, irrelevant.
