The confirmation hearing for Howard Shelanski, President Obama’s pick to serve as the Administrator of the White House Office of Information and Regulatory Affairs (OIRA) is set to take place Wednesday before the Senate Homeland Security and Government Affairs Committee. If confirmed, Shelanski would become the Administration’s new “Regulatory Czar,” a description that indicates the significant influence OIRA’s administrator has concerning what agency rules look like and, indeed, whether those rules are issued at all.
Shelanski’s confirmation hearing comes at a crucial juncture in the Obama presidency. Progress on many important rules has been halted, including the EPA’ rule to limit greenhouse gas emissions from future power plants. Of the 139 reviews currently pending at OIRA, 71 are beyond the 90-day limit set by Executive Order 12866. A number of rules have been under review for a year or even two years. If the President is to live up to his promise in his first post-election State of the Union address to take decisive action on pressing issues such as climate change, OIRA will have to change its tune. We will be listening during the hearing to see whether Shelanski is prepared to finish up regulations that are necessary to protect the public and the environment, rather than continuing the tortoise-like review process that has characterized the President’s first term. The answers to the following questions will provide the answer:
Will Shelanski ensure the quick completion of reviews for rules that have been stuck at OIRA for well beyond the 90-day limit in Executive Order 12866? Senators should ask about the many rules that are pending at OIRA, such as the EPA’s Chemicals of Concern rule (stuck since May, 2010); the Department of Transportation’s Requirements for the Transportation Of Lithium Batteries (since October, 2010); the Occupational Safety and Health Administration’s (OSHA) Silica rule (since February, 2011), OSHA’s Injury and Illness Recording Requirements (since November, 2011); the National Highway Traffic Safety Administration’s Rearview Camera rule (since November, 2011 despite a legislative deadline of February, 2011); and the Department of Energy’s Federal Building Standards rule (since December, 2011).
Will Shelanski make OIRA’s review process as transparent as is required by executive order? The centralized regulatory review conducted by OIRA pursuant to Executive Orders 12866 and 13563 has a significant impact on the substance of regulatory decision-making, yet OIRA has consistently failed to live up to its own transparency rules. Among other things, OIRA frequently ignores its self-imposed obligation to identify the changes it or an agency makes during its review in rules submitted by agencies. OIRA even actively discourages agencies from complying with these transparency requirements, as we have found out from former EPA official and CPR Member Scholar Lisa Heinzerling.
Will Shelanski be skeptical about the role of cost-benefit analysis in OIRA’s review of rules? As CPR scholars have pointed out on a number of occasions (see here and here, for example), the use of cost-benefit analysis to judge whether or not a rule should be promulgated is highly problematic. Among other problems, it systematically overestimates regulatory costs while underestimating—and even ignoring outright—important regulatory benefits, particularly those benefits—such as protecting human lives, children’s health, and ecological integrity—that cannot be meaningfully reduced to dollar-and-cents terms. For this reason, Congress has routinely charged agencies with using other methods for determining the stringency of regulations, such as the technology-based and health-based standards that are used in various Clean Water Act and Clean Air Act provisions. OIRA review should reduce its reliance on cost-benefit analysis and focus on the statutory standards that Congress has specified to guide rulemaking.
Will Shelanski seek ways to affirmatively support the mission of agencies to protect the public and the environment? Any effort to improve the federal regulatory system must begin with the recognition that regulatory agencies are in dire shape, hamstrung by years of budget cuts (at the same time that they have been given additional regulatory responsibilities), a hostile federal judiciary, and an even more hostile House of Representatives, among other impediments. Yet, past heads of OIRA have seen it as their mission to exacerbate agencies’ weakened state, turning things like Paperwork Reduction Act information collection request reviews and regulatory reviews into formidable obstacles to agency progress. Worse still, OIRA has sought to “keep agencies in check” by routinely second-guessing them on everything from policy decisions to complex scientific determinations, substituting its judgment on these matters for that of the highly expert agencies. The consequences of all of these impediments to agency progress are obvious—from the BP oil spill in the Gulf of Mexico to the Upper Big Branch Mine disaster that claimed the lives of 29 men; from the decaying natural gas pipeline networks running beneath our homes to the growing risk of imported food tainted with salmonella, botulism, or other contaminants showing up on grocery store shelves. OIRA should be leading the effort to restore the health of agencies, not looking for ways to bind them further.
How Shelanski responds to these questions will provide a real indication of what kind of progress we can expect the Obama Administration to make on implementing needed safeguards during its second term. We hope, for the sake of the public interest, he intends to reform OIRA’s role in the regulatory process.