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Tuesday, February 08, 2005

Law - Federal preliminary rulemaking receives legal challenge

The weekly Cindy Skrzycki Washington Post column, The Regulators, reports today:

The Salt Institute has its blood pressure up. The group that represents 36 domestic and foreign salt producers is appealing its loss of a lawsuit that challenged the science a National Institutes of Health agency used in 2003 to recommend that lower sodium consumption would improve people's health.

The case is being closely watched because it is the first to try to expand judicial review into the basis for agencies' preliminary rulemaking. Interest groups already can sue to try to overturn final regulations. But the sodium chloride group and the U.S. Chamber of Commerce want the courts to get into the action earlier.

According to the suit, the National Heart, Lung, and Blood Institute (NHLBI) at NIH violated the Data Quality Act by refusing to release scientific studies that concluded that reduced sodium intake results in lowered blood pressure for most people.

The law, passed in 2000 and enthusiastically implemented by the Bush administration, gives the public a way to urge agencies to correct the science and economics underlying the creation of a federal rule or policy.

The law permits an appeal if an agency denies the request for correction, but no judicial review. That's why business wants courts to be able to challenge agency decisions. "The petitions would all be meaningless, because we would have no way to appeal," said William L. Kovacs, vice president of regulatory affairs at the Chamber of Commerce. "You'd be stuck with what the agency tells you."

Critics say the law is a back-door way to second-guess regulatory professionals.

"Industry wants to take these decisions away from the regulators," said Sean Moulton, senior policy analyst with OMB Watch, a public interest regulatory watchdog group. "They want to question the data before the regulation even gets started."

He said filing data-quality petitions is a less obvious way of blocking a rule than going to court after a final regulation is issued, which can result in bad publicity for companies opposing environmental or health and safety rules. * * *

Posted by Marcia Oddi on February 8, 2005 09:56 AM
Posted to Administrative Law | General Law Related