In its lead editorial today (here, subscription required), “Obama’s Rulemaking Loophole,” the Wall Street Journal added its respected voice to the case which WLF has been making the past few weeks here at The Legal Pulse and in op-eds (see our post today) that President Obama’s “Improving Regulation” executive order is ineffectively narrow and easily circumvented. The Journal notes that language in the order creates a possible exception that could swallow the entire guidance:
When the agencies weigh costs and benefits, the order says, they should always consider ‘values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.’
A similar point was made last week by a January 19 post at Point of Law, as well as in a post at the NAM Shopfloor blog, which, we were happy to see, incorporated a passage from a Legal Pulse commentary on environmental justice.
The Journal op-ed also invokes the off-the-radar development of EPA’s environmental justice policies, and these policies’ inherently amorphous nature, in making their convincing case for the loophole in President Obama’s order:
The current EPA is a perfect case study. One of Administrator Lisa Jackson’s top priorities is “explicitly integrating environmental justice considerations into the fabric of the EPA’s process,” as a July 2010 memo to all senior regulators put it. ’Environmental justice’ is the left-wing grievance movement that claims pollution has a disproportionate effect on minorities and the poor. Ms. Jackson’s memo introduced new regulatory guidance—that is, rules about how to make rules—so every EPA action has ‘a particular focus on disadvantaged or vulnerable groups.’
Ms. Jackson wrote that a new goal for rulemaking, enforcement and permitting is to have ‘a measurable effect on environmental justice challenges.’ But these amorphous concepts are not measurable at all. According to this guidance, EPA must nonetheless consider them when estimating the ‘economic impacts of regulations,’ and even its scientific analysis should ‘encompass topics beyond just biology and chemistry.’ So put on your lab coat and complete a randomized controlled experiment in politics.