Regulatory Impact Analysis and Litigation Risk

This paper explores the role of microeconomic analysis in policy formulation by assessing how the regulatory impact analyses (RIAs) that federal regulatory agencies prepare for important proposed rules may affect outcomes when regulations are challenged in court. Conventional wisdom among economists and senior regulatory officials in federal agencies suggests that high-quality economic analysis can help a regulation survive such challenges, particularly when the agency explains how the analysis affected decisions. However, highlighting the economic analysis may also increase the risk a regulation could be overturned by inviting court scrutiny of the RIA. Using a dataset of economically significant, prescriptive regulations proposed between 2008 and 2013, we put these conjectures to the test, studying the relationships between the quality of the RIA accompanying each rule, the agency’s explanation of how the analysis influenced its rulemaking decisions, and whether the rule was overturned when challenged in court. The regression results suggest that higher-quality RIAs are associated with a lower likelihood that the associated rules are later invalidated by courts, provided that the agency explained how it used the RIA in its decisions. Similarly, when the agency described how the RIA was used, a poor-quality analysis appears to increase the likelihood that the regulation is overturned, perhaps because it invites a greater level of court scrutiny. In contrast, when the agency does not describe how the RIA was utilized, there is no correlation between the quality of analysis and the likelihood that the regulation will be invalidated.