Last Friday, Executive Order 12866, which governs the work of OMB's regulatory review arm, the Office of Information and Regulatory Affairs (OIRA) reached its 20th anniversary.
Center for Progressive Reform scholars marked the anniversary by examining the Order's reach and OIRA's influence on the regulatory process including on the issues of transparency, timeliness and the centralization of executive power.
Here's a roundup of their contributions:
David Driesen: Keeping OIRA from Harming Efforts to Reduce Greenhouse Gases Emissions
"As of this writing, more than six years have elapsed since the Supreme Court held that greenhouse gases were pollutants under the Clean Air Act, many of them under a President committed to addressing climate disruption. In all of that time, EPA has not imposed any limits on the greenhouse gas emissions of power plants or factories, thus making climate disruption irretrievably worse than it might have been."
Bill Funk: Time to Stand Up and Be Counted
"The heads of agencies, however, principal officers of the United States, have taken an oath to “faithfully discharge the duties of the office” they hold. They presumably believe that the proposed and final regulatory actions they submit to OIRA are called for by the duties of their office. If they are not willing to stand up and be counted when OIRA attempts to override their judgments, they are violating that oath."
Lisa Heinzerling: 20 Years of 12866
"President Obama’s own executive order on regulatory review, issued in 2011, discusses only the substance, and not the process, of regulatory review, and thus fails to solve any of the problems related to delay, transparency, or procedural regularity that I have described. Nor has OIRA itself solved these problems."
Thomas McGarity: A Long History of Analysis and Intervention
"The twentieth anniversary of Executive Order 12,866 is not a cause for celebration. It should be a cause for careful examination of the continued need for centralized review of protective federal regulations under a cost-benefit standard."
Nina Mendelson: Regulatory Review Needs to Comply with Transparency Requirements
"On this 20th anniversary of Executive Order 12,866, we should hold OIRA to its own standards. Just as OIRA requires detailed information and analyses to assess agency rules, we need information to evaluate the work centralized regulatory review is actually doing and when it is worthwhile."
Sidney Shapiro: More Politics, Less Expertise: What OIRA has Wrought
"Other offices in the White House, besides OIRA, are more deeply involved in making regulatory decisions than in any other previous administration.This deeper involvement has made it more likely that regulatory decisions will reflect political considerations rather than policy considerations. When this happens, OIRA’s regulatory review under E.O. 12866 can become a fig leaf covering up for the political decisions that are being made."
Amy Sinden: Executive Order 12866's Cost-Benefit Test is Still with Us and I Can Hear Ben Franklin Rolling Over in His Grave
"Genuine formal economic cost-benefit analysis cannot be achieved, or even approximated, in practice. Data deficiencies, knowledge gaps, resource constraints, and fundamental irresolvable theoretical dilemmas make it impossible."
Rena Steinzor: The End of Centralized White House Regulatory Review: Don't Tweak it, Repeal It
"Executive Order 12,866 did not create OIRA, but it provides the rationale for its continued existence in the same way that a menu is the reason people travel to a restaurant. As I have argued elsewhere, the solution is not to tweak the EO, but to repeal it, leaving OIRA to fulfill its limited statutory missions—forestalling excessive paperwork, for example."
Robert Verchick: White House Buries Itself in Analysis of Non-Ecnomically Signifigant Rules: A Tour of OIRA's Regulatory Dashboard
"Executive Order 12866 requires agencies to submit for review any rule that is “economically significant,” which is defined as having “an annual effect on the economy of $100 million.” So how many of those 118 rules stacked up at OIRA are 'non-economically significant'?"
Today, the Hill published an op-ed by CPR Vice President Sid Shapiro entitled, "In Defense of Regulation."
According to the piece:
The responsible scholarly literature — as opposed to calculations cooked by business-friendly think tanks — has refuted the opponents’ claims of regulatory costs far in excess of the benefits of regulation. The same literature reminds us that not regulating also has costs — costs paid by the American public rather than by regulatory entities.
Consider the Environmental Protection Agency’s long-delayed revisions to air quality standards required by the 1990 Clean Air Act Amendments. If it succeeds, and if the anti-regulation forces in Congress don’t derail it, the rules are projected to save 237,000 lives by 2020. If the rules are delayed further or scuttled altogether, that’s the cost of inaction — actual lives lost due to air-pollution-related illness.
It concludes:
Then there’s climate change. We’ve tried inaction, and the problem has grown more severe. Congress has failed to act, with the same forces opposed to regulation leading the charge against a law tailored to the specific causes of climate change. So it is left to the EPA and others to use existing statutory authority to reduce our planet-choking greenhouse gas emissions.
Like any aspect of government, the regulatory system is not perfect. But the long history of regulation in the United States tells a very consistent story: Smart regulation, pursuant to laws passed by Congress, saves lives, protects the economy, preserves the environment, safeguards workers, makes automobiles safer and more. Over our history, one overriding truth emerges: unregulated markets will not protect us or produce the type of society in which most of us would like to live.
Earlier this week, Roll Call published an op-ed by CPR Scholars Thomas O. McGarity and Wendy Wagner entitled, "Toxics Control Bill Will Handcuff EPA."
In our decades of research and writing on tort law and environmental regulation, we have never seen a pre-emption provision that intrudes more deeply into the civil litigation system at the state level than the one in this bill. If victims of toxic chemical exposure attempt to recover damages at the state level, their cases would have to be dismissed if the EPA had concluded — rightly or wrongly — that a chemical was safe.
For example, Hurricane Katrina victims who were housed in formaldehyde-contaminated Federal Emergency Management Agency trailers successfully sued the trailer manufacturers for damages. Under this bill, if the EPA found that formaldehyde passed its safety test, those families would be denied even their day in court.
Reform of toxic chemical legislation is long past due and badly needed. But the current bill, at least as it stands right now, fails the most fundamental of tests: It doesn’t make the existing law better.
Full textCenter for Progressive Reform Member Scholar and University of Texas School of Law professor David Adelman has written an article for theIndiana Law Journal entitled,"The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots." According to the abstract:
This Article presents the first synthesis of geospatial data on toxic air pollution in the United States. Contrary to conventional views, the data show that vehicles and small stationary sources emit a majority of the air toxics nationally. Industrial sources, by contrast, rarely account for more than ten percent of cumulative cancer risks from all outdoor sources of air toxics. This pattern spans multiple spatial scales, ranging from census tracts to the nation as a whole. However, it is most pronounced in metropolitan areas, which have the lowest air quality and are home to eighty percent of the U.S. population.
The secondary status of industrial facilities as sources of air toxics has important implications for the current debate over cap-and-trade regulation—the policy instrument of choice for controlling greenhouse gas (GHG) emissions responsible for climate change. Environmental justice advocates have opposed GHG trading in significant part because it could exacerbate inequitable exposures to toxic co-pollutants, not GHGs themselves, in minority and low-income communities.
The likelihood of such disparities occurring has remained an open empirical question. The geospatial data reveal that, apart from a few readily identifiable census tracts, the potential for GHG trading to cause toxic hotspots is extremely low. Moreover, for the few jurisdictions in which disparities cannot be ruled out, targeted policies exist to prevent them without compromising market efficiency.
The article can be read in full here and prompted responses from CPR Member Scholars Dave Owen and Alice Kaswan.
Full text
Yesterday, The Hill published an opinion piece by Center for Progressive Reform President Rena Steinzor entitled, "Regulatory backlog threatens health and the environment."
Opponents of regulation also seek to undermine the very legitimacy of agency rulemaking by fostering public hostility toward government and belittling life-saving regulation as “red tape.” What results is the gross politicization of the regulatory process, resulting in long delays and weaker rules, as measured in lives and health. For example, the cost of the recent eight-month delay of the EPA’s ozone rule is projected to be somewhere between 1,000 and 2,867 premature deaths.
The simple truth is that cries of "over-regulation" from industry and its allies in Congress are hooey. Having lost pitched battles in Congress over adoption of various environmental, health, and safety laws, they're simply re-litigating their case, hoping to undermine the rules that breathe life into laws they opposed in the first place. More broadly, they're trying to intimidate the administration from aggressively pursuing the only course that congressional gridlock leaves open to it to address climate change, air pollution, water pollution, unsafe working conditions, and more.
We can only hope the administration doesn't fall for it.
Today, Center for Progressive Reform President Rena Steinzor will testify at a Senate Hearing hosted by the Judiciary Committee entitled "Justice Delayed: the Human Cost of Regulatory Paralysis."
Steinzor's testimony can be read in full here.
According to the testimony:
Full textThe subcommittee deserves tremendous credit for airing the truth about the public health regulations that agencies are writing as directed by Congress. The costs of delay are as real as they should be unnecessary, given the clear mandates of the law. Unfortunately, the overwhelming clout of Fortune 100 companies and their relentless, self-serving effort to ignore the great benefits provided by these essential protections has dominated the airwaves.
One does not need to look far to see how essential regulations are. Just ask anyone whose life was saved by a seat belt, whose children escaped brain damage because the EPA took lead out of gas, who turns on the faucet knowing the water will be clean, who takes drugs for a chronic illness confident the medicine will make them better, who avoided having their hand mangled in machinery on the job because an emergency switch was there to cut off the motor, who has taken their kids on a trip to a heritage national park to see a bald eagle that was saved from the brink of extinction—the list goes on and on.
The EPA’s regulations are among the most beneficial safeguards the U.S. regulatory system has ever produced. For example, a 2011 EPA analysis assessing Clean Air Act regulations found that in 2010 these rules saved 164,300 adult lives and prevented 13 million days of work loss and 3.2 million days of school loss due to pollution-related illnesses such as asthma. By 2020, if the rules are issued promptly and Congress resists shrill demands that it derail them yet again, the annual benefits of these rules will include 237,000 adult lives saved as well as the prevention of 17 million work loss days and 5.4 million school loss days. Even the most conservative practitioners of cost-benefit analysis, including John Graham, President Bush’s regulatory czar, acknowledge what an amazing bang for the buck these regulations deliver in relationship to the costs they impose.
Conversely, because Clean Air Act regulations have been so long delayed—after all, Congress passed the Clean Air Act Amendments in 1990 and we sit here 23 years later—thousands of additional lives have been lost, hundreds of thousands of people have had heart attacks and visited the hospital because of respiratory illness, and people have lost millions of days off work and out of school.
Last week, The Hill published an opinion piece by Center for Progressive Reform Member Scholar Robert Verchick.
The piece entitled, "Politics and progress: Will the White House stall its own climate change plans?" can be read here.
According to Verchick:
Under its statutory authority, EPA has ample power to write rules limiting power plant emissions, for example. But since the Reagan administration, all “major” rules—those seen as important to national policy—have been funneled into a little-known process of review, conducted by the White House Office of Information and Regulatory Affairs (OIRA). It may be the most important government office you've never heard of —the depot through which all regulatory freight must pass, the ganglia of the president’s rulemaking.
By executive order, OIRA is required to review submitted agency proposals within 90 days. For the most part, past administrations have kept up the pace. But in the Obama administration, the trains no longer run on time. Of the 136 draft rules under review at OIRA, 72 have been held up for longer than the 90-day limit. Of those, 38 have been stalled for over a year. Nine rules from the Department of Energy have been at OIRA for over two years and deal directly with energy efficiency standards the President himself touted in his 2013 State of the Union address. In his climate address, for example, the President instructed EPA to issue stricter limits on power plant emissions, saying he wanted them by this September. He should have directed that to OIRA, not the EPA, because the EPA had already proposed a package of stricter standards for new coal-fired power plants and submitted it to OIRA in March 2012.
Full text
This morning, the House Energy and Commerce Subcommittee is expected to advance the "Energy Consumer Relief Act" for consideration. The Act would allow the head of the Department of Energy to veto any rules promulgated by the EPA with estimated "costs" of over $1 billion.
Center for Progressive Reform President Rena Steinzor testified against the bill in April at a Legislative Hearing.
Below is Steinzor's reaction to the Committee's movement of the Act:
The deceptively named, "Energy Consumer Relief Act" would effectively subsidize billion-dollar energy companies for their contamination of the environment at the expense of consumers suffering with pollution-related diseases like heart disease and asthma. The EPA has repeatedly been hamstrung by a regulatory process focused on cost-benefit analysis that estimates the lives of Americans in dollars and cents. This Act would effectively kneecap the Agency's remaining ability to protect citizens against damaging pollutants. The statutory trigger of $1 billion is designed to be expansive enough so that a if a rule raised energy costs for all households by an average of just $0.87 per year for ten years, it would be subject to a veto by the secretary of the DOE. Our air and water are drastically under-regulated and Congress should be working to reinvigorate the ability of the EPA to protect citizens instead of wasting taxpayers money to debate a bill that would only make them, quite literally, sick.
Full textLast night, the Senate confirmed Howard Shelanski as Administrator of the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget.
As we've written about before, the confirmation of Shelanski as head of OIRA comes at a criticial juncture. OIRA is tasked with reviewing rules proposed by federal agencies. Presently, of the 139 rules under review at OIRA, 71 are well beyond the 90-day review limit imposed by Executive Order 12866.
Below is Center for Progressive Reform Member Scholar Sidney Shapiro's reaction to the confirmation:
Now that he's been approved, Administrator Shelanski must begin the critical task of reinvigorating our calcified regulatory system. From clearing the backlog of overdue regulations stuck at OIRA in violation of the required deadline for finishing review to working with other Administration officials to identify ways to help implement President Obama's climate plan, thenew Regulatory Czar has a full plate.
Full text
Yesterday, The Hill published an opinion piece by Center for Progressive Reform President Rena Steinzor. The piece, entitled, "Toxic chemical bill trumps state rights" can be read here.
Steinzor writes:
[W]e read with dismay… the drastic provisions of legislation authored by Sens. David Vitter (R-La.) and the late Frank Lautenberg (D-N.J.) deceptively entitled the Chemical Safety “Improvement” Act. This misguided effort to reform the Toxic Substances Control Act (TSCA, pronounced TOSCA like the opera) would make all federal rulemaking “determinative” of toxic chemical exposure limits, thereby freezing in their tracks state efforts to pass standards that are more stringent than what the beleaguered Environmental Protection Agency (EPA) has managed to cough up. Never mind that certain kinds of chemical pollution are far worse in some states than they are at the national level, and forget the notion that democracy is strongest when citizens are closer to government. States would be forced to stand down, to the grave detriment of public health.
Full text