New report shows regulatory playing field tilting far to the right.
As regular readers of The Regulatory Review know, the White House Office of Information and Regulatory Affairs (OIRA) wields enormous influence over the federal regulatory process in the United States. But the mechanics of that influence have always been a bit of a mystery. Proposed regulations go into OIRA and come out some time later, often weakened during their stay. But what happens in the black box that is OIRA?
Last week, the Center for Progressive Reform (CPR), released the results of an exhaustive examination of OIRA’s work over the last decade. What we found surprised us. Simply put, OIRA under President Obama has exacerbated the already excessive politicization of the regulatory process; it has continued to serve as a forum for special interests seeking to overturn the sound judgment of scientists and other experts at regulatory agencies; it has failed to follow through on the President’s oft-stated commitment to transparency; and it has served as a one-way ratchet – weakening protective regulations at the behest of regulated industries.
We examined two things. First, we looked at the meetings OIRA held during regulatory review. Second, we looked at whether proposals were changed by OIRA. We compiled an exhaustive database of OIRA’s work over the last decade, and compared Bush’s OIRA with Obama’s.
Industry interests dominate OIRA’s meetings with outside parties. For every public interest representative who attends a meeting, five special interest lobbyists offset their concerns. In a large majority of cases, OIRA hears only from industry representatives. When OIRA meets with industry stakeholders about a rule, it is more likely to change the rule – and those changes run in one direction, toward making protections more lax.
We also found that OIRA extends its review beyond “economically significant” rules, the ones imposing costs more than $100 million in costs that are the focus of Executive Order (EO) 12866. OIRA is particularly obsessed with changing rules protecting the environment, watering down as many as 84 percent of EPA proposals. In addition, OIRA routinely misses deadlines, stalling public health and safety requirements. Worst of all, OIRA operates in secrecy, ignoring public disclosure requirements.
According to White House records, OIRA conducted 6,194 reviews of regulatory actions over the past ten years, 1,080 of which involved meetings with outside participants. The Obama Administration has improved only slightly on the record of the Bush Administration in this regard. Sixty-two percent of attendees represented industry and 16 percent public interest groups under President Obama, while under Bush, 68 percent were industry and 10 percent public interest groups. OIRA under Obama changed more proposals than it did under Bush: 76 percent compared to 64 percent. Meetings make it 29 percent more likely that OIRA will change a rule.
OIRA is particularly aggressive with rules of the Environmental Protection Agency (EPA). Even though EPA rules account for only 11 percent of the rules submitted to OIRA for review, OIRA has focused 41 percent of its meetings on EPA rules.
What’s particularly maddening about OIRA’s all-you-can-meet policy and its habit of changing rules is that the laws authorizing agencies to regulate require them to apply their expertise on relevant issues. OIRA is not the office specified in the statutes to conduct such reviews – that’s the agencies’ job. OIRA’s small band of economists doesn’t have anything approaching the expertise that EPA brings to environmental issues, for example, and the same is true for every other regulatory agency in its area of expertise. Agencies put that expertise to use, not just in drafting regulations, but in weighing the arguments presented to them. They are required to provide for comment periods, and to respond to the comments they receive. But then those proposals go to OIRA, which proceeds to re-create the public comment process, bringing little or no expertise on the substantive issues to the table.
OIRA persists for the simple reason that it suits the political purposes of Presidents; it’s a way to bring the tough decisions about regulations back to the White House and away from the agencies, and in the process, OIRA subjects agency proposals to a sort of star chamber proceeding heavily weighted toward industry’s interests.
In fact, not only does OIRA routinely re-examine agency decisionmaking in this way, it even goes far beyond the terms of its executive order in the process. While only about 100 rules each year are the economically significant rules that EO 12866 instructs OIRA to focus on, OIRA extends its reach into every corner of the EPA’s and other agencies’ work, reviewing 500 to 700 rules annually. It’s no wonder OIRA routinely misses its deadlines!
OIRA also routinely flouts other requirements of EO 12866. Despite the requirements that OIRA make available “all documents exchanged between OIRA and the agency during review by OIRA” and that the agencies “identify for the public those changes in the regulatory action that were made at the suggestion or recommendation of OIRA,” these provisions are a dead letter in practice. OIRA has operated in secrecy under both Presidents Bush and Obama.
The agencies that create the rules that OIRA reviews are the ones with statutory authority and expertise to protect public health, worker safety, the environment, and other areas. OIRA, which has no such authority or expertise in those areas, meets disproportionately with regulated industry members and then almost invariably weakens the protective rules proposed by the agencies. Even under President Obama, it functions as a refuge for special interests seeking to avoid regulation.
We had reason to hope for better from this President.
This essay draws from a recent report Professor Steinzor wrote together with Michael Patoka, a law student at the University of Maryland’s Francis King Carey School of Law and an intern at CPR, and James Goodwin, a Policy Analyst with CPR.