This guest post comes from a scientist who finds himself to be a Fish Out of Water.
Industry lobbyists have unlimited access to the White House to gut health, safety and environmental regulations proposed by the EPA and other regulatory agencies. A secretive, little known part of the White House’s Office of Management and Budget, called the Office of Information and Regulatory Affairs (OIRA), now run by economist Cass Sunstein, has consistently backed industry lobbyists over EPA’s environmental experts. The most notorious case was when the Obama administration, under political pressure from polluting industries, blocked the new stricter ozone (smog) standards that were developed based on solid scientific evidence to meet the Clean Air Act, humiliating Lisa Jackson, the head of the EPA, who had strongly supported the new standards.
When lobbying Congress and the president fails to delay or weaken a regulation, industry has learned over the years that Oira can be their last best resort, the report says.”A steady stream of industry lobbyists — appearing some 3,760 times over the ten-year period we studied — uses OIRA as a court of last resort when they fail to convince experts at agencies like the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and the Occupational Safety and Health Administration (OSHA) to weaken pending regulations.”
The lobbyists were particularly obsessed with trying to undo environmental protections. Corporate executives and indusry lobbyists turned up at the White House about once a week over the last decade to try to delay or weaken EPA regulations, or more than 440 meetings.
Since it came to be in 1980 Ronald Reagan, George Bush I used OIRA, to slow, weaken or stop the implementation of EPA’s regulations. Bill Clinton reduced OIRA’s power, increased transparency and cut the number of regulations it reviewed, but George W Bush II gave OIRA more power than ever and eliminated transparency. Under President Obama, Cass Sunstein has continued to run OIRA like the Bush administration did. The generalist economists in OIRA lack expertise in the health, safety and environmental sciences disciplines necessary to write and review the regulations competently. A detailed report by the Center for Progressive Reform (PDF 92p.) shows that OIRA tends to back industry lobbyists over the government experts, accepting industry calculations of costs, no matter how outrageous they are.
Records show that EPA regulations have been disproportionately targeted by corporate lobbyists compared to the regulations of other agencies.
Our results tell a damning story of the relentless erosion of expert agency judgments by relatively junior White House staffers. OIRA economists use the window dressing of ostensibly objective cost-benefit analyses to camouflage politicized interventions that alter two-thirds of all regulatory drafts submitted by agencies other than EPA, and a shocking 84 percent of EPA submissions.
Tucked in a corner of the Old Executive Office Building, an obscure group of some three dozen economists exerts extraordinary power over federal rules intended to protect public health, worker and consumer safety, and the environment. Known officially as the Office of Information and Regulatory Affairs (OIRA, pronounced oh-EYE-ra), this unit reports to the director of the White House Office of Management and Budget (OMB), but operates as a free-ranging squad that pulls an astounding number of draft regulatory actions — some 6,194 over the ten-year period covered in this report — into a dragnet that operates behind closed doors. No policy that might distress influential industries, from oil production to coal mining to petrochemical manufacturing, goes into effect without OIRA’s approval. A steady stream of industry lobbyists — appearing some 3,760 times over the ten-year period we studied — uses OIRA as a court of last resort when they fail to convince experts at agencies like the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and the Occupational Safety and Health Administration (OSHA) to weaken pending regulations.OIRA keeps secret the substance of the changes it makes to 84 percent of EPA and 65 percent of other agencies’ submissions. Despite this effort to obscure the impact of its work, every single study of its performance, including this one, shows that OIRA serves as a one-way ratchet, eroding the protections that agency specialists have decided are necessary under detailed statutory mandates, following years — even decades — of work. OIRA review is tacked on at the end of rulemakings that involve careful review of the authorizing statutes, lengthy field investigation, extended advice from scientific advisory panels, numerous meetings with affected stakeholders, days of public hearings, voluminous public comments, and thousands of hours of staff work. When all else fails, regulated industries make a bee-line for OIRA’s back door.
OIRA has functioned the same way under President Obama as it did under President Bush. Cass Sunstein has allowed corporate lobbyists to insert themselves throughout the process of regulatory development. The one large difference between administrations is that OIRA has exceeded time deadlines in 19% of all reviews involving meetings compared to 1% labeled “Deadline” under Bush
OIRA inserts itself at multiple stages in the regulatory process, giving industry lobbyists the opportunity to rewrite regulations as they are being drafted. Unlimited OIRA meetings with lobbyists can lead to long delays in regulatory review and development.
So we identified the ten EPA rules comprising the 19-percent “deadline” outcomes and searched through the online rulemaking docket for evidence of OIRA’s changes. For nine of them, EPA had posted redlined documents showing OIRA’s revisions, and in most cases, email correspondence between OIRA and EPA implying that changes were made. In seven of these, OIRA had made what seem like extensive changes to the rule—typically both the preamble and the text of the regulation itself.139 In the other two, OIRA appears to have changed, at the least, the impact assessments that accompany the agency’s rule.140 Without a clear summary of the changes made, we could not ascertain how substantive or significant these changes were. But given that OIRA uses the label “consistent with change” when even clerical corrections were made, we find it misleading that so many of these rules were simply labeled “deadline.”
Coal ash is toxic waste that contains high levels of selenium, arsenic, tellurium and many other known carcinogens. Under present rules, utilities are allowed to treat coal ash as a non-hazardous product that can be spread through the environment despite it’s toxicity. The EPA tried to develop regulations to protect water quality and health and safety, but OIRA interfered, under pressure from lobbyists. OIRA went along with outrageous industry claims about a $233.5 billion cost to society of “market stigma”. If OIRA is going to allow “market stigma” of toxic waste to be considered a cost to society, OIRA’s cost/benefit analyses have no credibility. OIRA is in the pocket of polluting industry lobbyists.
How OIRA’s Meeting Policy Impairs EPA RulemakingBecause OIRA’s meeting policy places no limits on outside parties’ opportunities to
participate, the number and frequency of meetings is limited only by the resources and
interests of the outside parties. As a result, rules promulgated by EPA are especially likely to attract vigorous industry participation. Throughout its existence, EPA has served as the number-one target of deregulatory efforts by industry groups.49 And the average environmental rule presents countless issues that are bound to whip regulated entities into a frenzy (e.g., the feasibility of a pollution control standard, the cost and performance of available technologies, the requirements for monitoring and reporting).50 Ultimately, OIRA’s “all you can meet” policy permits industry groups with resources to spare to browbeat EPA rules—their favorite target—with a predictably constant stream of meetings.
Aside from any substantive effects on the rules themselves, EPA ends up wasting resources and personnel on these meetings, when its hands are already more than full contending with the same kinds of arguments in its own communications with industry stakeholders. EPA prudently sends agency representatives to most of the meetings in order to defend its rules from industry attack in front of OIRA. Indeed, Croley found that “EPA staff are especially likely to attend meetings about their rules, relative to all other agencies,” probably due to the intensely controversial nature of environmental regulations.
51 OIRA, as an institution, has a history of viewing EPA regulations as overly aggressive and economically unsound, so industry complaints along the same lines are almost certain to find a receptive audience. For example, in OIRA’s recent review of EPA’s proposal to regulate coal ash,52 industry groups met with OIRA 33 times (out of 47 total meetings). They argued that EPA’s rule would inadvertently impose a crippling “stigma” on the beneficial recycling of coal ash, spelling disaster for the reuse industry, and by extension, the environment. 53 Lo and behold, at the conclusion of its review, OIRA faulted the agency for neglecting such a compelling issue and demanded that the proposal incorporate industry’s concerns before being released.54 In its rush to accommodate industry stakeholders, OIRA ignored the fact that EPA had never observed such a stigma effect in its prior experience,55 and it failed to address whether potential “market stigma” was even a permissible factor for consideration under the relevant statute.56 When the proposed rule was finally released, its cost-benefit analysis suggested that the most effective regulatory option could result in an enormous stigma effect: $233.5 billion in negative benefits (costs) to society.57 Much to the detriment of communities affected by toxic coal ash, the weaker regulatory alternatives that would barely make a dent in the status quo were made to appear far more attractive—exactly the outcome that industry wanted in the first place.
The lead author of the report interviewed by the Guardian summed up environmentalists’ disappointment with the Obama administration.
“To us this is a sharp departure from what we were promised when this president was elected,” Steinzor said. “From sound practice what we really want is for the experts to be making decisions at government agencies – the toxicologists, the pediatricians, the geologists. That’s what modern government is supposed to be about, not having the decisions made by an office that is not accountable for what it does.”