May 03, 2012

White House Letter Focusing Debate on Regulatory Costs -- and Not Benefits -- Frustrated EPA Officials, Emails Reveal

By CPR President Rena Steinzor and Media Manager Ben Somberg

Internal EPA emails obtained by CPR through a FOIA request reveal EPA officials’ frustration regarding the White House’s efforts to triangulate House Republicans’ ferocious attacks on regulations. A White House letter last year emphasizing regulatory costs but barely describing the lives saved and injuries avoided by strong protections angered environmental and public health advocates.  The newly released emails show that top EPA officials – who were not even consulted – were also not pleased.

On August 26 of last year, Speaker of the House John Boehner sent President Obama a letter requesting that the Administration provide a list of “planned new rules that would have an estimated economic impact of more than $1 billion.” The goal, of course, was to continue the GOP’s focus on the costs of regulations (the headline of Boehner’s press release: “Citing Spike in Red Tape, Speaker Boehner Seeks Info from White House on Job-Threatening Regulations”). The information Boehner was requesting was already publicly available, but that wasn’t the point; the point was to drive an anti-regulatory message. And it worked: The Washington Post ran a story under the headline “Boehner asks Obama to detail $1 billion regulations.”

And so it was disappointing when the White House took the bait – hook, line, and sinker. President Obama responded to Boehner four days later with a two-page letter that attempted to convince the Speaker (an impossible mission no matter the facts) that the Administration was very busy reducing regulatory costs. In a 19-sentence letter, the President managed only one sentence making the positive case for regulations (“And in 2009 and 2010, the benefits of such rules -- including not only monetary savings but also lives saved and illnesses prevented -- exceeded the costs by tens of billions of dollars.”) The rest of the letter was playing on Boehner’s anti-regulation turf.

Most egregious was the Appendix, which provided a simple chart of seven regulations under development with annual costs estimated to exceed $1 billion. The chart did not include any information on the benefits of those regulations. The only information presented, for example, on the Utility MACT – a major rule finalized last year that will bring dramatic health benefits by reducing hazardous pollutants from coal power plants – was that it was estimated to cost $10 billion.

What the White House didn’t say: the rule is estimated to bring $37 billion to $90 billion in monetized health benefits alone, a figure that doesn’t even include most of the benefits from reduced mercury pollution (We’re using the slightly adjusted numbers from the final rule, issued in December). It’s estimated to prevent up to 11,000 deaths each year, 2,800 cases of chronic bronchitis, 130,000 asthma attacks, and more than half a million missed work or school days for illness. Those facts might not have mattered at all to John Boehner, but the audience here was the press and the public.

While the White House thought it was providing factual information, in reality it was instead playing – and losing – a PR game. The AP ran the headline: “Obama to Boehner: 7 proposed regulations would cost more than $1 billion each.”  So much for triangulation.  In the polarized politics of the Nation’s Capital, it turns out, a weak defense is worse than none at all.

EPA Press Secretary Betsaida Alcantara forwarded the White House’s just-released letter to a group of top EPA officials, asking “Did anyone get any heads up on this letter?” Bob Perciasepe, EPA’s number two official, replied: “We did not get contacted[.]”

Then Daniel Kanninen, at the time EPA’s White House Liaison, wrote to relay to the group his communication with Christopher Lu, the White House’s Cabinet Secretary (bolding added):

I have spoken with Chris Lu, who also was unaware of the letter and it's [sic] release prior to it going out the door.

He is following up with OIRA now. I made several points to him for that purpose. First, that we've spent a great deal of time and energy framing these rules with the public health and environmental benefits, and when and how they are driven by statutory, scientific and legal obligations, which this letter and appendix do not. And second, that in the interest of both accuracy and situational awareness tighter coordination would be been [sic] appreciated and in this case would have avoided a fairly significant error.

Chris found those to be compelling points and I'm sure will relay them to OIRA (Cass and/or Fitzpatrick was the inference), but I would certainly endorse relaying that message to others.

In a subsequent email, Gina McCarthy, EPA Assistant Administrator for Air and Radiation, explained that the figure in the White House’s letter for the cost of the “boiler MACT” was from the April 2010 proposal, not the February 2011 rule – which had a significantly lower cost.

In the final analysis, we are left with a frustrating, but revealing tale here. When the White House undermines efforts in its own administration, the good people at the agencies working to protect the public don’t get to air their grievances publicly to tell the story. They’re required to act as if there is unanimity. When the White House scuttled EPA’s ozone proposal,  for example, Lisa Jackson maintained near silence publicly, fueling speculation that the affront was so serious she might go so far as to resign.

The White House’s attempts to woo industry critics stretch the facts and achieve little politically, and rhetorically undermine EPA’s efforts to explain to the public the benefits of updated protections.  Rather than hearing EPA’s carefully constructed and factual case about the health benefits of regulations, the public often hears the White House’s conservative language about issuing fewer regulations and weakening existing ones. EPA and other agency officials would face White House consequences if they complained publicly.

Readers of this blog know a great deal about how this White House, through the Office of Information and Regulatory Affairs, has obstructed the good work of the agencies – from EPA trying to protect the public from ozone in the air, to OSHA’s effort to protect workers from deadly silicosis. The public record tells part of the story, but with these emails we get a peek into the frustration agency officials understandably feel when the White House blocks their efforts. A good start would be for the White House to stop undermining the agencies in the first place; otherwise, the President may find that if he wins a second term, he’ll have a hard time attracting the best and brightest to come work for him.


Rena Steinzor, Professor of Law, University of Maryland Carey School of Law. Bio.

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1 Way to use FOIA CPR'rs to confirm how OIRA/White House is undermining EPA and our other public health agencies from doing their important work to protect children and communities from industrial hazards. This shenanigans between OIRA and the agencies has gone on too long and in every Administration. Since Mr. Obama already attracted many of the best and brightest to run these agencies, I wonder if any of them will be bold enough to expose this damaging interference so it doesn't continue unabated. The best and the brightest should team up and do so. THAT would be a fine legacy.
-- Celeste Monforton

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