Informal rulemaking under the Administrative Procedure Act was, as the late Kenneth Culp Davis opined, "one of the greatest inventions of modern government." It not only decreased the procedural requirements (and therefore the overhead) of “formal” rulemaking, but it also broadened the universe of persons able to participate in the informal proceeding to the public at large. Subsequently, other laws, such as the Freedom of Information Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act, have expanded the ability of the public to monitor agency activities, if not to participate in them. BTI (before the Internet), agencies informed the “public” of proposed rules by publication in the Federal Register, which was widely available in public libraries. Interested members of the public could then submit comments on the proposal through the U.S. Mail (or private express carriers). Of course, those “in the know,” the Washington lawyers and lobbyists who actually read the Federal Register notices, could not only comment on the proposals but also monitor what was submitted to the agency by going to the agency’s FOIA reading room. And, of course, these same lawyers and lobbyists could also make use of their proximity to the agencies by arranging one-on-one meetings with influential persons in the agency. “Good government” at the time meant that such meetings would be docketed and summarized and any written material there obtained placed in the record. This information might be useful to the other insiders in Washington, but it was useless to the public at large.
The availability of the Internet has led some to believe that this rulemaking paradigm can be altered in favor of greater public participation and influence, presumably to the detriment of the traditional power brokers. Regulations.gov is the official government attempt to put rulemaking online. As a means of empowering the public, however, it’s a disaster. It is difficult to navigate, and its search engine can’t find its way home. For example, if you wanted to find the Department of Transportation’s recently proposed rulemaking to prohibit commercial truck drivers from texting while driving, you might try using the keyword “texting.” But if you did, you wouldn’t find this rule. If you’re an expert (one of those Washington insiders with a little tech savvy), however, it’s OK, because you probably already know the docket number.
Along comes Cornell Law School and its Legal Information Institute (known for its immediate dissemination of Supreme Court opinions), with a new initiative, the Cornell E-Rulemaking Initiative or CeRI. Together with the Departments of Transportation and Commerce and the National Science Foundation, CeRI is attempting to help agencies transition to electronic rulemaking. In particular, CeRI wants to facilitate public participation in government policymaking and increasing public participation beyond the notice-and-comment process.
Full textThe system of checks and balances devised by the Framers of the Constitution 220 years ago was all about the sharing of power. In practice, it makes for a messy flow chart, and lends itself to lots of inside-the-Beltway conversation about who’s in, who’s out, who’s winning and who’s losing. But as messy as the how-a-bill-really-becomes-a-law flow chart is, the structure within the White House itself usually features one constant: When the President says jump, staffers ask how high.
Every now and again, however, things get turned on their head, and the forces of bureaucracy manage to thwart Presidential will. That dynamic appears to be at work right now in the White House Office of Management and Budget, where Obama appointees Peter Orszag and Cass Sunstein, the director of OMB and Administrator of the Office of Information and Regulatory Affairs, respectively, seem to be operating in defiance of an Executive Order by President Obama. On March 17, 2010, several of my fellow CPR Board Members and I wrote to White House counsel Robert Bauer asking him to investigate Orszag and Sunstein’s clear violation of decisions made by this President with respect to regulatory review.
The most troubling practice is OIRA’s assertion of authority to review guidance documents from regulatory agencies, which include speeches, advice letters, electronic mail exchanges and other efforts to advise regulated parties about how to comply with regulations. OIRA typically reviews major regulations, and has an Executive Order authorizing it to do so, but guidance documents are another matter. This huge extension of OIRA’s field of operation was first established in the waning days of the George W. Bush Administration with the issuance of Executive Order 13,422. The Bush EO’s extension of this authority was criticized by progressives as an example of brazen overreaching that could paralyze the federal government’s efforts to regulate everything from financial services to pollution.
Full textFans of The Hitchhiker’s Guide to the Galaxy have long celebrated the number 42 as the answer to the ultimate question of life, the universe, and everything.” Now, the number 42 also happens to be the number of meetings that OIRA has hosted regarding EPA’s pending coal ash rule, as it works toward developing the Obama Administration’s answer to the ultimate question of how to regulate the disposal of this toxic waste.
________________________________________
OIRA Meetings on Coal Ash, as of April 5, 2010
(Click links to see attendees and examine documents presented to OIRA staff.)
Parties Supporting EPA Proposal (13)
- Public Interest Groups (12): 3/16/10; 3/11/10; 3/11/10a; 2/25/10; 2/25/10a; 2/24/10; 2/24/10a; 2/16/10; 12/16/09, 12/16/09, 12/11/09, 12/10/09a; 11/13/09
- Environmental cleanup industry (1): 1/27/10
Parties Opposing EPA Proposal (29)
- Power Plant Industry and affiliates (5): 12/22/09, 11/12/09b, 11/04/09, 10/28/09, 10/16/09
- Coal mining industry (1): 11/10/09
- Reuse industries and reuse users (23): 2/18/10; 1/28/10, 1/21/10, 1/21/10a, 1/19/10, 1/15/10, 1/12/10, 1/8/10, 01/04/10, 12/18/09, 12/15/09, 12/14/09a, 12/10/09, 12/09/09, 12/7/09, 12/1/09, 11/30/09, 11/23/09, 11/17/09, 11/16/09, 11/13/09a, 11/12/09a, 11/12/09
________________________________________
Full textIt’s official: Centralized regulatory review is trickling down to the states. Last month, in one of his very first actions as the newly elected Governor of New Jersey, Chris Christie issued a pair of sweeping executive orders (no. 1 and no. 2) mandating centralized review of all state agency regulations to ensure that they are justified by cost-benefit analysis (CBA). The orders’ provisions mirror those of a controversial executive order issued by New York Governor David Paterson last August (for critiques of the Paterson order, see Rebecca Bratspies and Sidney Shapiro). New York and New Jersey join a growing number of states that employ some form of centralized regulatory review—a group that includes Arizona, Hawaii, Illinois, Oklahoma, Pennsylvania, Virginia, and Wisconsin. Will more states follow New York and now New Jersey by instituting their own version of the Office of Information and Regulatory Affairs (OIRA)?
Executive Order no. 1 creates the “Red Tape Review Group” and directs it to oversee “a new common sense approach to the adoption and promulgation of administrative rules and regulations.” The Order also suspends all proposed regulations for 90 days so that the Red Tape Review Group can review them. Executive Order no. 2 directs state agencies to review existing regulations to determine whether, among other things, they pass a CBA test. Though it's not completely clear (the orders are hardly sterling examples of quality legal draftsmanship), it appears that the Red Tape Review Group is supposed to oversee this review. The agencies must then rewrite or eliminate any rules that are “inefficient, needlessly burdensome, [or] that unnecessarily impede economic growth.” Executive Order no. 2 further directs agencies to design all future rules so that they “impose the least burden and costs to business, including paperwork and other compliance costs, necessary to achieve the underlying regulatory objective.”
Similar concerns with reducing paperwork burden and compliance costs for businesses motivated the creation of OIRA in the early 1980s. Since that time, OIRA has become one of the most powerful entities in the federal government, wielding significant influence over the substance and goals of regulations developed by federal agencies.
Full textThe Workforce Protections Subcommittee of the House Education and Labor Committee held a hearing Tuesday on the Protecting America’s Workers Act of 2009, legislation that would, among other reforms, modernize workplace health and safety penalties. More than a decade ago, I testified at a similar hearing in the House of Representatives on the same subject. The need for stronger OSHA penalties was apparent then, and it is no less apparent today.
The hearing is memorable to me because I testified along with a father whose son was killed on a construction site while working at a summer job between years of college. His son was working on one of the floors of a multi-story building under construction. He was asked to carry some construction materials across the floor of the building from one side to the other. He piled up the materials in his arms with the result that he could not see clearly in front of himself. When he walked across the floor, he stepped into the hole that was the elevator shaft, falling to his death at the bottom. The contractor had not put up a barricade around the hole in the floor, as it was required to do in order to prevent just such accidents.
OSHA has done much good; workplaces are safer than they were at the time that the agency was founded. But one does not have to look very far to find stories like the one told that day at the hearing. Workers continue to be killed and seriously injured in accidents related to OSHA violations.
Full textIn a rare public appearance at the Brookings Institute Wednesday, Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein is quoted by BNA’s Daily Report for Executives saying that his ambitious plans for revamping Executive Order 12,866 – the document that governs much of the process of regulating, and particularly OIRA’s role in it –have been tabled for the time being as he and his staff study the lengthy comments presented by a broad range of industry and public interest groups. “So what we’ve been doing under the existing framework is working to implement the President’s agenda in a way that is also alert to the content of the comments we’ve gotten,” he explained.
Meanwhile, outside the event, a small group of demonstrators, including one dressed as Sesame Street character Oscar the Grouch, demonstrated against “Ash Sunstein,” whom they accused of working to kill an EPA proposal to regulate the disposal of toxic metal-laced coal ash that is now dumped into unlined pits in the ground. You can see a snippet of both the protestors and Sunstein’s remarks on YouTube.
The juxtaposition of the two events had that quirky edge that, well, makes democracy and free speech entertaining! Of course, Sunstein has had more than his share of free speech aimed at him since he was nominated. CPR Member Scholars raised concerns early on about his embrace of cost-benefit analysis, a tool that the Bush Administration used to water down or kill outright all kinds of needed protective regulations, particularly environmental ones, and we’ve stayed after OIRA since then. But Sunstein also came under figurative semi-automatic fire from Second Amendment “enthusiasts,” whose distortions of Sunstein’s views on animal rights led to a conservative blogosphere feeding frenzy.
Full textThirty-eight years ago today, the dam holding back a massive coal-slurry impoundment (government-speak for a big pit filled with sludge) located in the middle of Buffalo Creek gave way, spilling 131 million gallons of black wastewater down the steep hills of West Virginia. The black waters eventually crested at 30 feet, washing away people, their houses, and their possessions. By the end of the catastrophe, 125 people were dead, 1,121 were injured, and more than 4,000 were left homeless.
Interviewed years later, Jack Spadaro, an engineer teaching at West Virginia’s School of Mines when the dam broke, told the West Virginia Gazette: “The thing that disgusted me was that people in the valley had been saying for years there was a problem there. They’d been evacuated many times before because of the fear of a dam failure.” Spadaro added, “I went through stacks and stacks of documents that went back into the ‘50s, and I think that, if somewhere along the way, there had been somebody within government willing to say, ‘Something really has to happen here,’ then those people would be alive and their families would be whole.”
When EPA Administrator Lisa Jackson took office in the first wave of Obama appointments, she decided to become that official. Correctly identifying the problem of negligent disposal of 140 million tons of coal ash, a type of mining waste even more toxic than the slurry that assaulted the West Virginians, as a first-order environmental justice issue—people living within a mile of a coal ash dump site are 30 percent more likely to be poor and minority than the mainstream population-- Jackson accelerated a 30-year effort to cope with the problem by EPA career staff. We think she produced a proposed rule that would designate the ash a hazardous waste if it is dumped in pits and exempting it if it is recycled safely by, for example, incorporating it into the concrete used to build roads. We can’t be sure, though, because before the rule was even published in the Federal Register for comment, it vanished into the bowels of the Office of Information and Regulatory Affairs at OMB, the traditional killing ground for such efforts. We have no idea when it might emerge or what it will say when it does.
Full textAdd arsenic to the list of carcinogenic chemicals that will see delayed regulation from EPA as a result of OMB’s meddling. Last week, after almost seven years’ work, EPA released a draft assessment of the bladder and lung cancer risks posed by arsenic in drinking water. But the release of the final arsenic risk assessment is being delayed while EPA’s Science Advisory Board is asked to take yet another look at agency scientists’ work. As Jonathan Strong wrote in InsideEPA (sub. req'd) last week, the recursive review by SAB is “emboldening” activists who want to delay any potential new drinking water regulations.
Demanding external peer review of EPA scientists’ work on just about anything is a standard tactic industry uses to bide time before they have to shell out the money to clean up the messes they’ve made. Witness Sen. David Vitter’s hold on President Obama’s nominee for the head of EPA’s Office of Research and Development (the people responsible for IRIS assessments). Senator Vitter kept the hold on Dr. Anastas for months, until Administrator Jackson agreed to send the long-delayed formaldehyde IRIS assessment to the National Academy of Sciences for Review. That guaranteed Sen. Vitter’s constituents in the formaldehyde industry at least another 18 months of regulatory delay – more, if they can pull a few choice words from NAS’s eventual report and claim that they undermine the draft assessment.
A Senate hold on a presidential nominee isn’t the only way to ensure delay, though. Strong encouragement from people within the Executive Office of the President is another, and that’s just what the opponents of arsenic regulation got. In October 2008, EPA released an early draft of the arsenic IRIS reassessment for “interagency” review. OMB weighed in, as usual, with a set of comments that ask some highly scientific questions. As we’ve noted many times before in this space, OIRA’s small staff, with their expertise in economics and general regulatory policy and responsibility for overseeing the entire Executive Branch, should not be delving deep into the pre-regulatory science at one agency.
Full textThe Obama Administration struck a blow for transparency last week with the launch of an online dashboard allowing users to keep track of what the White House Office of Information and Regulatory Affairs is working on. Good for OIRA for making such information so readily available. CPR plans to put it to good use.
This month we began an initiative of our own, CPR’s Eye on OIRA project. As the name suggests, we plan to keep careful tabs on what OIRA’s doing, what regs it has before it, how long they’ve been there, which lobbyists are meeting with which OIRA staff, whether OIRA is sticking to its deadlines, and what the end result of OIRA’s involvement turns out to be. The hard truth is that, even in the Obama Administration, OIRA is where industry focuses its efforts to weaken needed regulations. OIRA seems to think that’s appropriate, which is why CPR intends to apply heightened scrutiny.
One example of the value of such efforts is the recent and ongoing dust-up over EPA’s effort to regulate coal ash. We’ve written a lot about it on CPRBlog, but the essential facts are that the coal power plant industry and coal ash reuse industries have been lobbying OIRA night and day for the last few months, trying to head off an EPA regulation on how to deal with coal ash that is not safely recycled. Right now the toxic stuff is stored in large outdoor “containment areas,” which sounds a lot better than “holes in the ground,” which is what they basically are. EPA sent a draft of a proposal to OIRA in October, and OIRA was supposed to spend no more than 90 days working it over. But OIRA extended its review period by 30 days – something the controlling Executive Order allows it to do. Then OIRA appears to have missed that deadline, too, something the Executive Order does not allow it to do, at least not without EPA asking it to hold the proposal hostage for a while longer.
During the Bush Administration, OIRA got in the habit of sitting on regulations just as long as it pleased, regardless of deadlines. That muscle memory persists, now 13 months into the Obama Administration. The coal ash deadline long gone, OIRA and EPA appear to be locked in negotiation over the proposal – a proposal that has not yet seen the light of day, by the way, an indication of why the push for transparency and scrutiny is both important and incomplete.
We know as much as we do about the coal ash saga because we’ve been keeping track, piecing together tidbits of information. OIRA doesn’t send out a lot of press releases announcing that it’s delaying action, watering down regs, meeting with industry lobbyists and so on. It usually does that sort of thing in the dark. CPR’s Eye on OIRA project is intended to focus a little more light on the agency.
Full textSaturday’s Washington Post crystallized a trend of reporting in recent days showing that neither misaligned floor mats nor defective pedals are to blame for all acceleration problems in Toyota cars, at least not in the 2005 model Camry. The car, which has neither piece of offending equipment, does have electronic acceleration controls that are beginning to emerge as a potential cause of the problem. If those computerized systems are at the heart of even a small universe of Toyota’s problems, as long-time auto safety expert Clarence Ditlow told the Post, the problem should raise “a huge red flag.”
Automobile manufacturers have been working for several years to perfect electronic controls in their cars because those systems are much lighter and therefore are important in the effort to improve fuel economy by giving engines less weight to drag around. But you can scour the public record of the National Highway Traffic Safety Administration in vain to find any mention that federal regulators are focusing on the problems caused by electronic systems, a fact that is a damning indictment of how far the agency sank into lethargy during the Bush years.
NHTSA’s job is to spot trends in auto manufacturing and get out ahead of them, not to react after a sufficient number of deaths and injuries have brought defects to the front pages of newspapers across the country. Investigating “defects” after the fact is not a viable alternative to prospective, prescriptive rules because NHTSA’s burden is more challenging at that phase and people have already been killed and injured by the time regulators rush in to mop up the fiasco. So, for example, a prospective rule on electronic controls could require the installation of a viable emergency braking system that could be used by consumers in any circumstance when the electronic system malfunctions and sudden acceleration occurs, and would avoid the problem of sending regulators out to prove a systematic defect in delicate electronic systems after fatal accidents, on wrecked cars, and case by case.
Full text