Moving White House regulatory review away from political roadblocks

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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

Are we seeing a shift in Obama’s priorities away from using the regulatory review process to avoid picking fights with special interests? It appears that, under the new administrator of the White House Office of Information and Regulatory Affairs, the backlog of long-languishing proposed and final-stage agency rulemaking has shrunk somewhat. It remains to be seen how the White House will deal with EPA when the agency puts forward for OIRA review its final rule on greenhouse gas emissions from new electric power plants, and its  proposed rule on emissions from existing power plants. The clock is ticking on Obama’s second term.

Last month we wrote (White House roadblock for environment, safety, and health regulation) about a new report from the Administrative Conference of the United States that suggested 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 in the White House Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget — in violation of timeliness, transparency, and respect for agency roles that the White House would claim to support. We wondered what this might portend for climate and clean energy-related rules during the remainder of Obama’s second term. Here’s some follow-up:

Katie Greenhaw at the Center for Effective Government presents an overview of Rules to Watch (and Wait) for in 2014 that includes this:

Just before Thanksgiving, the White House quietly released the 2013 Unified Agenda, which contains information on a broad range of upcoming regulatory actions, as well as agencies’ regulatory plans detailing the most important significant regulatory and deregulatory actions they expect to propose or finalize during the coming year. …

The U.S. Environmental Protection Agency’s (EPA) regulatory plan includes some actions that have advanced to the final rule stage, but many long-awaited actions remain stalled in earlier rulemaking stages, are identified only as long-term actions, or have disappeared from this year’s regulatory plan altogether. …

EPA’s rule to limit greenhouse gas emissions for new fossil fuel-fired power plants will move forward. The rule would reduce the amount of carbon dioxide that is released into the air and contributes substantially to climate change. EPA released the new proposal to the public on Sept. 20, 2013 in accordance with President Obama’s new climate action plan, announced in June 2013, and the official proposal was published in the Federal Register on Jan. 8, 2014.

The full text of the rule and procedure for commenting are at this link: Standards of Performance for Greenhouse Gas Emissions From New Stationary Sources: Electric Utility Generating Units

Greenshaw continues:

The president’s climate plan also requires EPA to propose standards for existing power plants by June 2014 and finalize those standards by June 2015. EPA’s agenda indicates the agency is on track for meeting these deadlines, although the agency has not yet submitted a draft rule for existing power plants to the Office of Information and Regulatory Affairs (OIRA) for review. …

The bad news: EPA does not expect to complete proposed or final actions for many crucial delayed rules. The plan provides no timeline for issuing a long-awaited proposal to update national air quality standards for ozone pollution. In 2011, EPA completed a proposed rule that would have strengthened inadequate ozone standards that were previously overturned by a federal court. But before the proposal was published, Obama ordered EPA to withdraw the rule and directed the agency to wait and update the standard by 2013 as required under the Clean Air Act (CAA). But now, review of the ozone standard is listed as a “long-term action.” A schedule for a proposal and final action on the ozone standard is being negotiated between EPA and the public health organizations that sued the agency for not meeting the CAA deadline for review of the standard.

We wrote earlier about how White House pre-election politics killed this important EPA ‘smog rule’, which has not yet recovered from the damage done (“Smog Rules” — Obama, scientific integrity, and environmental policy):

Greenshaw adds:

Although EPA proposed new standards for the regulation of coal ash in 2010, little progress has been made toward issuing comprehensive national standards, and the rule has been pushed back to a long-term action despite being listed in the pre-rule stage in the spring agenda. However, an October court order required EPA to submit a plan for finalizing the coal ash rulemaking process by Dec. 29, 2013. EPA also plans to move forward and finalize a proposed rule to reduce water pollution from coal-fired power plants and their related wastes. The agency is under a judicial deadline to finalize the rule by May 22, 2014.

We’re not sure just what mix of factors explains these delays — high-level political interference, the OIRA stranglehold on rulemaking, limited resources for carrying out its statutory mandates at an increasingly budget-strained and politically besieged EPA, and just the inherent complexity, difficulty, and time-consuming nature of good rulemaking. But the net result is a painstakingly slow and compromised process of  protecting the environment against the relentless pressures of economic development dominated by powerful corporate interests that resist regulation.

The Administrative Conference of the United States (ACUS) report on improving the timeliness of White House OIRA regulatory review has this:

From 1994 through 2011, an average of fewer than 10 completed reviews per year (less than 2%) took more than six months; however, in the first half of 2013, 63 reviews (nearly 30%) took more than six months, and 27 (nearly 13%) took more than one year. Further, these statistics may understate the extent of the delays. …

[D]uring his confirmation hearing for the position of OIRA administrator, Howard Shelanski was asked by Senator Carl Levin about the “chronic” delays of rules at OIRA, delays that Senator Levin said “fundamentally undermine the agencies’ ability to effectively execute the responsibilities that those agencies have.” Mr. Shelanski said he shared Senator Levin’s concerns about the timeliness of OIRA reviews, and said speeding up the review process would be “one of my highest priorities” should he be confirmed as administrator. …

On June 30, 2013, the New York Times published an editorial noting the number of rules that had been under review at OIRA for some time, and suggested that the backlog “has more to do with politics than economics.” It went on to say that 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.” …

It does appear that, under Howard Shelanski, the new OIRA administrator, the backlog of long-languishing proposed and final-stage agency rulemaking has shrunk somewhat. However, we note on the OIRA “dashboard” website, which lists regulations currently under review, that as of today four EPA proposed rules on limiting air and water pollution have been stuck at OIRA for between 22 and 29 months — quite a bit longer than the 90 days OIRA is supposed to take, under the Executive Order, in reviewing agency rules. And four proposed or final-stage Department of Energy rules designed to strengthen energy efficiency standards, under DOE’s statutory authority — and thus contribute to mitigating climate change — have been stuck at OIRA for 23 to 29 months.

These include:

  • Energy Efficiency and Sustainable Design Standards for New Federal Buildings, Solar Hot Water Requirements, Water Efficiencies, and Green Building Ratings

This rulemaking implements provisions of the Energy Conservation and Production Act, as amended by the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007, that require DOE to establish revised performance standards for the construction of new Federal buildings and major renovations of Federal buildings.

  • Fossil Fuel Energy Consumption Reduction for New Construction and Major Renovations of Federal Buildings

This rulemaking implements provisions of the Energy Independence and Security Act of 2007 that require DOE to establish revised performance standards for the construction of all new Federal buildings, including commercial, multi-family high-rise residential and low rise residential buildings.

  • Energy Efficiency Standards for Manufactured Housing
  • Energy Conservation Standards for ER, BR, and Small Diameter Incandescent Reflector Lamps

Are there good reasons for why these rules have been in the OIRA review-and-approve pipeline for years?

Hopefully, if there is a shift in Obama’s priorities away from using the regulatory review process to avoid picking fights with special interests, and if OIRA will do its job of expediting regulatory review, we will get past the problem of inappropriate White House political interference in how federal agencies carry out their responsibilities.

It remains to be seen how the White House will deal with EPA when the agency puts forward for OIRA review its final rule on greenhouse gas emissions from new electric power plants, and its  proposed rule on emissions from existing power plants. The clock is ticking on Obama’s second term. The advocacy community needs to keep up the pressure and watchdogging to help ensure essential climate mitigation rules get moved through the pipeline to completion before the clock winds down altogether.

Earlier posts:

OMB Office of Information and Regulatory Affairs needs a shake-up (July 2, 2013)

How will OMB treat EPA’s new power plant carbon pollution rule? (July 1, 2013)

Heinzerling on Obama OMB’s power grab v. EPA and science-based rulemaking (April 5, 2013)

On the White House Scientific Integrity guidelines – Part 3: OMB as a Force for Secrecy (January 17, 2011)

On the White House Scientific Integrity guidelines – Part 1: OMB’s Secret ‘Openness’ Policy (January 12, 2011)

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