The editorial board of the New York Times called out the Obama administration for its practice of allowing the White House OMB Office of Information and Regulatory Affairs (OIRA) to obstruct environmental, health, and safety protections by blocking proposed federal agency rules, while routinely violating ostensibly required procedures for timeliness and transparency. With some key elements of Obama’s climate action plan required to run the OIRA gauntlet, a measure of Obama’s seriousness about the plan will be whether he shakes up this office, which has been allowed to exercise far too much power to obstruct federal agencies from performing their statutory functions.
See earlier posts:
The New York Times editorial board wrote on June 30 (“Stuck in Purgatory“) (excerpt):
President Obama’s new regulatory agenda on climate change will face inevitable legal and political challenges. But in all fields — not just energy and the environment but health, safety and labor — one of the most formidable obstacles to reform has been the administration’s own resistance to finalizing new rules, even when it has expressed support for the causes those rules would address.
Recently, 136 draft rules from executive agencies were under review at the White House’s Office of Information and Regulatory Affairs, or OIRA, a branch of the Office of Management and Budget. Of them, 72 have been held up for longer than the 90-day limit set by executive order, and of those, 38 have languished for more than a year, including 24 from 2011 and three from 2010.
The backlog has more to do with politics than economics. In 2012, a presidential election year in which Republicans hammered the administration for its allegedly “job killing” regulations, the number of rules receiving final approval hit a historic low (in data going back to 1993), while the time OIRA took to vet proposals hit new highs.
Even though Mr. Obama won, delays persist. It is as if the White House were still driven by election-year motives: defuse Republican taunts and placate industry. Or worse, its commitment to new rules is suspect. …
Through most of its history, the office has been used to advance antiregulatory aims, often by emphasizing the burdens rather than the benefits of regulation. Under Mr. Obama, OIRA has largely continued to dwell more on costs than benefits, even as executive agencies have proposed new rules to protect the public.
The result has been an attenuated process that gives administration officials cover for their political reluctance to advance rules or their substantive opposition to them. …
At the end of the day, what the public needs most is not just a more timely and transparent review process but a president unafraid of Republicans or corporate interests and determined to enact his regulatory agenda.
A June 4 letter to Sylvia Matthews Burwell, director of the White House Office of Management and Budget from Senators Sheldon Whitehouse (D-RI), Tom Harkin (D-IA), Benjamin L. Cardin (D-MD), and Richard Blumenthal (D-CT), and Reps. Henry A. Waxman (D-CA) and Edward J. Markey (D-MA) included this:
We appreciate that during your confirmation hearing in the Senate Budget Committee you agreed to address regulatory review delays in OMB’s Office of Information and Regulatory Affairs (OIRA). As you know, OIRA is responsible for reviewing rules and regulations in a timely and transparent manner. In Executive Order 12866, President Clinton recognized the importance of a timely and transparent regulatory review process and set, among other things, a 90-day deadline for OIRA review. President Obama affirmed his commitment to these standards in Executive Order 13563. However, key standards to protect public health, worker safety, and the environment have languished at OIRA, in some cases for years.
Fourteen of the twenty rules submitted by the Environmental Protection Agency (EPA) have been under review at OIRA for more than 90 days; thirteen have been delayed for more than a year. One particularly egregious example of OIRA delays is EPA’s Guidance Identifying Waters Protected by the Clean Water Act. This guidance would clarify regulatory jurisdiction over U.S. waters and wetlands. It is an issue that has come before the U.S. Supreme Court three times and, until the Administration finalizes this guidance, will continue to create confusion, loopholes, and inconsistency for officials at the state and local level. Despite the clear need for regulatory guidance from this Administration, EPA’s final guidance has been under review for 470 days, since February 21, 2012.
Nine of the ten Department of Energy (DOE) rules under review at OIRA have been there for more than 120 days. Important DOE energy efficiency standards, such as those for commercial walk-in coolers and freezers, commercial refrigeration equipment, and metal halide lamp fixtures have been pending at OIRA for more than a year.
Similarly, key worker safety standards have also been delayed for far too long. …
President Obama has committed OIRA to following important disclosure rules to ensure transparency and accountability in the regulatory process. However, OIRA frequently holds onto rules without explaining its concerns, preventing agencies from taking steps to address them. If there are problems with rules or guidance submitted by any agency, those problems should be aired and addressed, not kept hidden behind closed doors.
The need for expeditious and transparent regulatory review is particularly important in the current political climate. With Congress often paralyzed by gridlock, the public is depending on the federal agencies to protect public health and welfare. OIRA should strive to facilitate efforts by the agencies to respond to urgent priorities being stymied in Congress.
The American Council for an Energy-Effcient Economy writes (“The Cost of Overdue Energy Efficiency Standards“):
Since June 2011, the Obama administration has missed deadlines for completing eight new appliance, lighting, and equipment energy efficiency standards. Because each month of delay also usually delays the effective date of new standards, millions of additional inefficient products will be sold and remain in use, wasting energy for many years. This energy waste will cost consumers billions of dollars and result in millions of tons of long-lasting carbon dioxide (CO2) emissions that should have been avoided.
The delays to date will cost consumers and businesses about $4.4 billion in lost savings (net present value, 2011$) and will result in about 44 million metric tons of additional CO2 emissions.
See also the article by Lisa Heinzerling, “Who Will Run the EPA?“, in the Yale Journal on Regulation. Heinzerling was Senior Climate Policy Counsel to EPA Administrator Lisa P. Jackson from January to July 2009, and Associate Administrator of the Office of Policy from July 2009 to December 2010.