April 07, 2016
The MetLife Designation Opinion - To Designate, FSOC Must Do A Cost-Benefit Analysis
Posted by David Zaring

MetLife successfully appealed its designation as a SIFI to the district court in Washington, which took an awfully searching review of the factors used by the FSOC to make the determination.  The court, in the end, concluded that the council's designation was arbitrary and capricious, which means it was illegal.  The most interesting part of the opinion is the part requiring the FSOC to do a cost benefit analysis before designating.

FSOC has refused to do a quantified cost benefit analysis, which is a departure for the executive branch.  The White House requires agencies to conduct one before they promulgate expensive rules.  That a financial regulator, where excel spreadsheets and quantified stress tests are part of the job, would refuse to do one in making a determination about the riskiness of a financial institution is a pretty interesting rebuke to those who believe that cost benefit analyses are essential components of effective regulation.  But perhaps the FSOC has been listening to John Coates.

Here's what the court had to do to require a cost benefit analysis - most, um, interestingly it relied on the word "appropriate" while ignoring the word "deems" in Congress's guidance about how to do SIFI designations.  Most administrative lawyers would conclude that it was up to the Council to decide whether to take costs into account in designations if the statute provides that the FSOC “shall” consider a number of factors and also “in making a designation, any other risk-related factors that the Council deems appropriate.”

But the court thought differently:

FSOC, too, has made the decision to regulate—by designating MetLife. That decision intentionally refused to consider the cost of regulation, a consideration that is essential to reasoned rulemaking. Cf. [Michigan v. Environmental Protection Agency, 135 S. Ct. 2699 (2015)] at 2707 (“Consideration of cost reflects the understanding that reasonable regulation ordinarily requires paying attention to the advantages and the disadvantages of agency decisions.”) (emphasis in original). In light of Michigan and of Dodd-Frank’s command to consider all “appropriate” risk-related factors, 12 U.S.C. § 5323(a)(2)(K), FSOC’s position is at odds with the law and its designation of MetLife must be rescinded.

I'm pretty unpersuaded by that reasoning.  Cost benefit analysis may be a good idea, or it may not be, but I don't see how the courts should go around requiring it on the basis of a catch-all clause awarded discretion to the agency to add factors to an already long list of factors to be considered in SIFI designations.

Administrative Law, Finance, Financial Crisis, Financial Institutions | Bookmark

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