OIRA's Role in Regulation

Helping or Hurting?

When Congress has passed laws to protect Americans from various hazards – the Clean Air Act, the Occupational Safety and Health Act, the Consumer Product Safety Act, for example – it has inevitably charged (sometimes created) a federal agency with the task of writing regulations and enforcing the law.

In 1980, Ronald Reagan was elected President on an agenda that included generalized opposition to “intrusive” regulations – a campaign platform plank that translated into a no-holds barred effort to cut back on health and safety regulations. A key weapon in that fight was the White Office of Management and Budget (OMB), and its Office of Information and Regulatory Affairs (OIRA). By instructing agencies to clear drafts of regulations through OIRA, Presidents have made the agency and its chief, the so-called “Regulatory Czar,” a virtual choke point for federal regulation. Particularly during the Bush II years,  OIRA went far beyond its expertise, second-guessing scientific and technical decisions of agencies in order to bend regulations to the White House’s political or ideological agenda.

Very early on, the Obama Administration announced its intention to develop a new approach, one that was to be embodied in a future executive order on the regulatory process. But by the end of President Obama's second year in office, no such new executive order had been issued, effectively leaving a process established during the Clinton administration in place. Meanwhile, OIRA under Cass Sunstein has continued to serve as a conduit for industry attacks on environmental, health and safety regulations, often substituting the scientific judgment of its inexpert staff for that of the agencies themselves, and it has persisted in imposing a deeply flawed cost-benefit analysis, all while slowing down an already glacial regulatory process.  In short, the Obama Administration's OIRA has functioned very much like the Bush OIRA, serving largely as as an impediment to vigorous regulation.

CPR Member Scholars have weighed in repeatedly on the issue of OMB's role in the regulatory process, including at the time of Cass Sunstein's nomination to direct OIRA, repeatedly over the course of his tenure as specific developments warranted, and with a first-year report card on the Obama Administration's regulatory progress.  (Sunstein's OIRA earned a C-, the lowest grade on the report card.) Another particular focus of the Member Scholars' work has been the role of cost-benefit analysis in regulatory analysis, which has been used over the years as a device to water down or block much needed regulations.  That work includes:

• Reforming OIRA. Read Protecting People & the Environment by the Stroke of a Presidential Pen: Seven New Executive Orders for President Obama’s Second Term, CPR Issue Alert 1215, December 2012, which includes proposed reforms for OIRA and its use of cost-benefit analysis.
• Coal Ash. OIRA's extended review of EPA's 2009 proposal to regulate coal ash is a case study in what's wrong with the process.  OIRA violated the executive order establishing its authority to review regulations by missing its deadlines, then imposed on EPA an alternative, watered-down, regulation, and then saddled EPA's original proposal with a cost-benefit analysis that would make it all but impossible for EPA to describe plainly hazardous coal ash as a hazard.  Read CPR Member Scholar Rena Steinzor's 2010 comments on EPA's proposal and OIRA's role in the process.  Read the news release.
• Obama Administration's First-Year Report Card.  In January of 2010, CPR Member Scholars Rena Steinzor and Amy Sinden, joined by Executive Director Shana Jones and Policy Analyst James Goodwin, issued Obama’s Regulators: A First-Year Report Card (CPR White Paper 1001), evaluating the Obama Administration's initial efforts on the regulatory front.  (Their overall grade:  a B-.)  The report also graded each of the five "protector" agencies responsible for guarding against hazards to public health, safety and the environment -- theEnvironmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA), the National Highway Traffic Safety Administration (NHTSA), the Consumer Product Safety Commission (CPSC) and the Food and Drug Administration (FDA).  Read more about the report card, here.
• IRIS. Read about efforts to get EPA to update its IRIS database, a gateway to regulating dozens of toxic chemicals already in commerce, and the ways that OMB has slowed down and interfered in the process.
• OMB Reports to Congress. OMB files annual reports to Congress on the costs and benefits of regulation, and CPR Member Scholars often respond.
• Regulatory Process Executive Order.  Read CPR's November 20, 2009 Editorial Memo on the Obama Administration's Forthcoming Executive Order on Regulatory Process, by Rena Steinzor and Robert Glicksman.  And the very similar press backgrounder.
• Cost-Benefit Analysis.  Read about Member Scholars work on cost-benefit analysis.
• Reforming OIRA Conference: Listen to mp3 files of CPR's May 22, 2009 conference, Reforming OIRA: The Future of Regulatory Review.
• CPR's Sunstein/OIRA Report.  Read Reinvigorating Protection of Health, Safety, and the Environment: The Choices Facing Cass Sunstein (180 kb). Read the news release (50 kb).
• Final Comments on Obama Regulatory Review Process.  Read the March 16, 2009 comments Comments Regarding Executive Order on OMB Regulatory Review from John Applegate, Robert Glicksman, Thomas McGarity, Sidney Shapiro, Amy Sinden, Rena Steinzor, Robert Verchick (collectively the CPR board).  The comments call for OIRA to give up centralized regulatory review, and replace its use of cost-benefit analysis with pragmatic regulation impact analysis.  Read the web article.
• Preliminary Comments on Obama Regulatory Process Memo.  Read Rena Steinzor's February 20, 2009 letter to OMB chief Peter Orszag submitting preliminary comments for OMB consideration as it prepares recommendations for President Obama on ways to reform the regulatory process.  The letter also called for a formal review period for OMB's proposal once a draft was prepared.
• Only 2 of 31… Just 2 of the 31 statutory provisions undergirding the nation’s health, safety and environmental regulatory structure call for cost-benefit analysis. One is the Consumer Product Safety Act. Can you guess the other? Use CPR’s chart to impress your friends.
• Editorial Memo.  Read "Regulation Makes a Comeback," an October 1, 2008 editorial memorandum by CPR Member Scholar Rena Steinzor on what the autumn 2008 Wall Street crisis tells us about the dangers of deregulation of environmental health and safety.
• Op-Ed.  Read "Reviving Regulation," by CPR Member Scholar Rena Steinzor, published in the September 28, 2008 Baltimore Sun.
• Regulatory 'Underkill' White Paper.  CPR Member Scholars William W. Buzbee, Robert L. Glicksman and Sidney A. Shapiro collaborated on "Regulatory Underkill: The Bush Administration's Insidious Dismantling of Public Health and Environmental Protections" (CPR White Paper #503).
  
• EO 13422.  A 2007 Executive Order from President Bush established a new regulatory process, one designed to make it harder to adopt protective regulations inconvenient to industry.  In his second week in office, President Obama revoked the Order.  Read about EO 13422.