Letter from OIRA Administrator Sunstein emphasizes President’s role.
Last week’s decision by the Obama Administration to withdraw consideration of new ozone standards has rightly received much attention for its policy and political implications. Overlooked in the furor that has surrounded the decision, though, has been a notable acknowledgement by the Obama Administration that will undoubtedly have implications for administrative law.
Although President Obama issued his own statement, technically the decision to have the Environmental Protection Agency (EPA) withdraw its draft final rule was announced by a “return letter” from the Administrator of the Office of Information and Regulatory Affairs (OIRA), Cass Sunstein, to the EPA Administrator, Lisa Jackson. This return letter was the first one sent by OIRA during President Obama’s two and a half years in office. More important than the fact of the letter itself, however, was one sentence in the letter: “The President has instructed me to return this rule to you for reconsideration.”
OIRA has reviewed agency regulations since 1981. To the best of my knowledge, as someone who served at OIRA in both Democratic and Republican administrations and who has since closely studied the OIRA process as a scholar, this is the first time a return letter has explicitly indicated that the President is the source of motivation for rejecting an agency rule. Such decisions have historically been described by OIRA as technocratic ones made by the OIRA Administrator and any hint of political motivation has been masked.
OIRA has been harshly criticized frequently over its 30-year existence, particularly by those who support strong regulatory intervention in the marketplace. While the criticisms leveled against OIRA have been many, two of the most frequent and prominent concerns have focused, first, on what critics consider to be OIRA’s institutional obsession with cost-benefit analysis to the exclusion of public health concerns, and, second, on what they consider to be the illegitimacy of unelected and unaccountable OIRA staff overturning the work of presidentially appointed, Senate-confirmed agency heads.
But OIRA has always worked for the President and has always made enforcing the President’s priorities a central part of its mission. For too long, critics have ignored OIRA’s key role as a presidential overseer, an ironic omission given that many who have worked at OIRA have long recognized that presidential preferences are the biggest factor in OIRA’s decisions.
Analytical concerns about cost-benefit analysis and the policy preferences of civil servants at OIRA take a backseat to the preferences of the President throughout the work OIRA does. Making explicit mention of the President in the most prominent return letter in decades will hopefully bring this reality back to the center of future discussions over OIRA’s role in the regulatory process.