A new report from the Administrative Conference of the United States suggests that political interference by the White House delayed numerous federal agency rulemakings in the run-up to the 2012 election. By 2013, proposed rules on clean air and water, new energy efficiency standards, and others spanning numerous agencies, had been caught in a black hole for a year or more at the Office of Information and Regulatory Affairs -- in violation of timeliness, transparency, and respect for agency roles that the White House would claim to support. What might this portend for climate and clean energy-related rules during the remainder of Obama's second term?
The Administrative Conference of the United States (ACUS) has released a report on improving the timeliness of White House OIRA regulatory review. The report, Length of Rule Reviews by the Office of Information and Regulatory Affairs, is available here in PDF format.
The report, and interviews with high-level current and former administration and career officials, confirm and further document a problem we have written about previously. They suggest that Obama's Office of Information and Regulatory Affairs (OIRA) interfered with scientifically and technically based environmental and other rulemaking well beyond anything his predecessors had attempted.
OIRA is the office within the White House Office of Management and Budget (OMB), part of the Executive Office of the President, that oversees the development of federal regulations, which are instrumental to carrying out the responsibility of the Executive Branch to implement and administer the laws passed by Congress. Thus, in addition to OMB's control over federal agency budgets, through OIRA it also exercises authority given to it by successive presidents to approve, disapprove, and shape proposed new federal regulations, including science-based regulations.
In a practice that started under Ronald Reagan and continues, largely unacknowledged at least until recently, under Obama, OIRA 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. OIRA has become an exceptionally powerful office, exercising control over whether an agency can submit a proposed rule for consideration, over the process by which other agencies can influence the rule, over how long the review of a proposed rule takes, and whether the proposed rule moves forward or is blocked altogether.
Senior employees in 11 federal departments and agencies who worked with OIRA were interviewed anonymously for the ACUS report. The report found that, during 2011 and increasingly during 2012, proposed regulatory changes were held for internal review, on average, far longer than had been the case for several decades. The report says: "These senior agency employees provided a variety of perspectives as to why they believe OIRA review times had increased: (1) concerns by some in the Executive Office of the President (EOP) about the issuance of potentially costly or otherwise controversial rules during an election year" ...
Juliet Eilperin reported on this in the Washington Post, drawing on interviews with current and former administration officials and senior federal managers ("White House delayed enacting rules ahead of 2012 election to avoid controversy"):
The White House systematically delayed enacting a series of rules on the environment, worker safety and health care to prevent them from becoming points of contention before the 2012 election, according to documents and interviews with current and former administration officials.
Some agency officials were instructed to hold off submitting proposals to the White House for up to a year to ensure that they would not be issued before voters went to the polls, the current and former officials said.
The delays meant that rules were postponed or never issued. The stalled regulations included crucial elements of the Affordable Care Act, what bodies of water deserved federal protection, pollution controls for industrial boilers and limits on dangerous silica exposure in the workplace.
The Obama administration has repeatedly said that any delays until after the election were coincidental and that such decisions were made without regard to politics. But seven current and former administration officials told The Washington Post that the motives behind many of the delays were clearly political, as Obama’s top aides focused on avoiding controversy before his reelection.
The number and scope of delays under Obama went well beyond those of his predecessors, who helped shape rules but did not have the same formalized controls, said current and former officials who spoke on the condition of anonymity because of the sensitivity of the topic. ...
In effect, OMB, while not having appreciable in-house scientific expertise, exercises considerable authority over the use of science in policymaking. As environmental journalist Joseph A. Davis has noted: "For decades, under both Democratic and Republican administrations, OMB has held and used the authority to overrule scientific findings and set agency regulations from the White House, based on secret meetings with industry groups that contribute major money to presidential campaigns." If an administration finds science to be a potential impediment to a politically preferred course of action, there are ways to get around it.
Earlier this year the editorial board of the New York Times called out the Obama administration for its practice of allowing the Office of Information and regulatory Affairs 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.
In follow-up posts we'll look further at the findings of the Administrative Conference report, and consider the implications for regulatory action relevant to administration climate and energy policies.
"Smog Rules" -- Obama, scientific integrity, and environmental policy (December 5, 2011)