Heinzerling on Obama OMB's power grab v. EPA and science-based rulemaking

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New Executive Office Building, Washington, DC, houses the Office of Management and Budget

New Executive Office Building, Washington, DC, houses the Office of Management and Budget (Photo: Noah Van Gilder)

How can we get scientific integrity, transparency, and accountability in environmental and public health regulation when the President’s Executive Office appears to be the leading offender? In must-read truth-telling articles and interviews, Lisa Heinzerling, who directed the EPA policy office during 2009-2010, is laying bare how Obama's Office of Information and Regulatory Affairs impedes science-based rulemaking at EPA and other agencies. Don’t expect straight talk about this from Obama’s nominees to head EPA and the Office of Management and Budget (OMB) at their upcoming confirmation hearings. We need truth-tellers from inside to make transparent for the public the dynamics of OIRA’s abuse of power that the White House wants to keep hidden.

In a practice that started under Ronald Reagan and continues, unacknowledged, under Obama, OMB’s Office of Information and Regulatory Affairs (part of the Executive Office of the President) has essentially been empowered to manipulate and often block science- and health-based rulemakings -- thus preventing the Environmental Protection Agency and other federal regulatory agencies from doing their jobs under the law.

In a powerful new critical analysis in the Yale Journal on Regulation (“Who Will Run the EPA”), former EPA official and current Georgetown law professor Lisa Heinzerling, begins:

With President Obama’s nomination of Gina McCarthy as the new Administrator of the Environmental Protection Agency (EPA), much attention has turned to her record as the EPA official in charge of air pollution programs, experience as the head of two states’ environmental agencies, and views on specific policies and priorities. And with the President’s nomination of Sylvia Mathews Burwell to be the Director of the Office of Management and Budget (OMB), attention has likewise turned to her record and experience. Few recognize, however, the tight relationship between the two nominations: the Obama administration’s approach to governing will make Ms. Burwell Ms. McCarthy’s boss.

In five pages of plain English, and drawing on hard-won personal experience, Prof. Heinzerling outlines the complex internal processes that characterize the dominance relationship of OMB/OIRA, with its anti-regulatory bias and almost-dictatorial powers, over EPA and other agencies, including the Food and Drug Administration and the Occupational Safety and Health Administration.

Prof. Heinzerling also has an outstanding guest post at Climate Progress, in which she takes on the egregious Cass Sunstein, Obama’s choice to head OIRA during his first term (Sunstein’s ‘Simpler Government’ Is Legally Suspect, Overly Secretive And Politically Unaccountable). One clip:

No theme more pervades Sunstein’s book than the idea that government transparency is essential to good regulatory outcomes and to good government itself.

The deep and sad irony is that few government processes are as opaque as the process of OIRA review, superintended for almost four years by Sunstein himself. Few people even know OIRA exists; in fact, the adjective that most often appears in descriptions of this small office is “obscure.” Even fewer people know that OIRA has effective veto power over major rules issued by executive-branch agencies and that the decision as to whether a rule is “major” — and thus must run OIRA’s gauntlet before being issued — rests solely in OIRA’s hands. Most people, I would venture to guess, think that the person who runs, say, the Environmental Protection Agency is actually the Administrator of the Environmental Protection Agency. But given OIRA’s power to veto rules, the reality is otherwise: In the rulemaking domain, the head of OIRA is effectively the head of the EPA.

This state of affairs poses several problems. Two have to do with law. One problem is that laws on workplace health, environmental protection, food safety and other protections give agencies — like OSHA, EPA, and the FDA — the authority to make rules. They do not give this authority to OIRA. No statute, in fact, gives OIRA the power to review agencies’ rules. …

OIRA also undermines accountability by working in the dark. Although the Clinton-era executive order that outlines the OIRA review process sets out many requirements for transparency, President Obama’s OIRA follows almost none of them. …

The post leads to the question: Is this the future of government — legally suspect, politically unaccountable, preternaturally secretive?

Kate Sheppard has a terrific interview with Prof. Heinzerling at Mother Jones ("Former EPA Climate Adviser Rips Obama Over Environmental Regulations"). Another must-read, which includes this:

Mother Jones: How much of a barrier to getting good regulations has the OMB been under Obama?

Lisa Heinzerling: It's a huge barrier. From the moment a person at EPA thinks of the possibility of issuing a rule, they start to think, "Will OMB let us issue this rule?" It affects everything in rulemaking at the agencies. If they do get to the point where they decide to go ahead with the rule and propose it or issue a final rule, then it may well get stuck forever at OMB. In most case in this administration, no one knows that a rule is stuck, or why.

MJ: Does this lead to self-censorship at the agencies? Are they thinking, "Maybe we shouldn't be as aggressive on this rule as we think we need to be because OMB won't let it go through"?

LH: A lot. After [my piece] on this went up, a career staffer at EPA that I'd never met wrote to me and said, "We're constantly checking ourselves. We're constantly asking ourselves not, 'Is this the right thing for environmental protection?' but, 'How can we make this acceptable to OMB?'" Obviously that's just one person, but I saw this all the time.

MJ: Is this worse than previous administrations?

LH: There are some things I think are more aggressive about OMB in this administration. Certainly for a Democratic administration it's notably aggressive.

And Dave Roberts interviews her at Grist: "Who’s really in charge on EPA rules?"

Most citizens’ eyes would probably glaze over at trying to think about this sort of inside-Washington institutional stuff. But it is vitally important for understanding American government and politics -- and for understanding the difference between a President’s rhetoric and the realities of what his Executive Office is doing in practice.

At their confirmation hearings, Senators should ask Gina McCarthy (Obama’s nominee to head EPA) and Sylvia Mathews Burwell (his nominee to head OMB) these questions: Who will control EPA's regulatory decisions – EPA or OIRA? Will you ensure transparency in their relationship? Will EPA be allowed to do its job of science-based rulemaking, including on greenhouse gases, without political interference from OIRA? Ask the questions, but don’t expect candid answers.

Great credit to Lisa Heinzerling for her contribution to setting the record straight. It would be great to also hear from Lisa Jackson, who has some powerful stories to tell. We also need candor on current inside developments on OMB’s ongoing abuse of power (as green-lighted by the President) – and for that we need whistleblowers.

*    *    *

Photo of New Executive Office Building licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.

Earlier posts:

Two years ago we ran a 4-part series on the White House Scientific Integrity guidelines that discussed in some detail the problem of OMB vis-à-vis scientific integrity and accountability (see Parts 1 and 3 in particular):

On the White House Scientific Integrity guidelines – Part 1: OMB’s Secret ‘Openness’ Policy (first of a 4-part series)

On the White House Scientific Integrity guidelines – Part 2: Can Federal Scientists Speak Freely With Journalists?

On the White House Scientific Integrity guidelines – Part 3: OMB as a Force for Secrecy

On the White House Scientific Integrity guidelines – Part 4: Sources, Documents, Further Information

We have discussed the problem of Obama’s tendency in some cases, not to censor science, but to set science aside when it proves politically inconvenient:

What to do when the White House sets science aside?

"Smog Rules" -- Obama, scientific integrity, and environmental policy (article in Index on Censorship)

On Al Jazeera’s Inside Story we talked about EPA-administrator nominee Gina McCarthy and whether EPA would be allowed to do its job:

On Obama's nominees for EPA Administrator and Secretary of Energy

We saw Gina McCarthy’s diplomatic-to-a-fault response to a question about OMB’s “politically connected and secret kill-switch for federal Executive Branch disclosure policies and initiatives”:

Government scientific information: Culture of secrecy is still a problem

Early in Obama’s first term we raised concerns about the potential for inappropriate OMB interference with the integrity of EPA regulation of greenhouse gases:

White House OMB should not be allowed to undermine EPA Clean Air Act regulation of greenhouse gases

We told Environmental Science & Technology that President Obama’s naming of Cass Sunstein to head the OMB Office of Information and Regulatory Affairs could be a problem unless OIRA is kept on a short leash in reviewing agency health, safety, and environmental rulemaking.

Many people no doubt think of "cost-benefit analysis" as meaning something like "common sense," i.e., in non-technical terms. But cost-benefit analysis, applied as a technical methodology, can promote bad decisions when used in situations where benefits may be hard to quantify precisely, or to monetize and place a market value on. This could include a wide range of issues involving human health and safety and environmental protection. For sophisticated discussion, from a more progressive perspective than we see in the anti-regulatory bias of Obama's OIRA:

Prof. Heinzerling is co-author of an incisive book, Priceless: On Knowing the Price of Everything and the Value of Nothing, which lays out the case against the cost-benefit analysis approach to protecting health, safety, and the environment.

The Center for Progressive Reform published a valuable white paper raising concerns about Sunstein’s approach and presenting a strong critique of using cost-benefit analysis in developing environmental, health, and safety regulations (Reinvigorating Protection of Health, Safety, and the Environment: The Choices Facing Cass Sunstein, Center for Progressive Reform, White Paper #901, January 2009).

Postscript:

Starting in the late 1990s I witnessed for several years how staff at OMB, even below the level of branch chief, could engage in high-handed behavior in jerking around the federal agency leadership of the U.S. Global Change Research Program. The level of toxic arrogance was almost breathtaking at times. But that’s a story for another day. I kept my whistleblowing action focused on the political higher-ups – not that OMB didn’t deserve a good swift kick.

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2 Responses to Heinzerling on Obama OMB's power grab v. EPA and science-based rulemaking

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