June 22, 2010

Eye on OIRA: Regulation Goes Opaque

Across the full spectrum of outside cognoscenti who are focused on the reality that a small office at the White House has final authority over the agencies charged with preventing catastrophes like the BP oil spill and the Big Branch mine disaster, one threshold assumption is sacrosanct. This tiny Office of Information and Regulatory Affairs, now headed by former Harvard Law professor Cass Sunstein, ought to operate in bright sunshine, disclosing fully its communications with the agencies so the public can see its impact on rules and other administrative activities.  We have insisted on this point, our loyal opposition at the Center for Regulatory Effectiveness agrees with it, and no less a bipartisan body than the Government Accountability Office has found that such transparency is too often lacking. As a matter of fact, the goal is not at all abstract: the Executive Order authorizing OIRA, 12866 contains specific directives requiring such disclosure. The EO, issued by the Clinton Administration and continued under Presidents George W. Bush and Barack Obama, requires those transparency measures in order to deflect the perception that OIRA is a court of last resort for aggrieved industry groups and a killing ground for strong regulation. Indeed, Peter Orszag, director of the Office of Management and Budget and Sunstein’s boss, issued a memorandum in December 2009 assigning OIRA the task of enforcing transparency throughout the government.

So how has transparency fared during OIRA’s Sunstein era? Not so well. OIRA under Sunstein has not only asserted that any agency or department can condemn action by another agency in secret, it is apparently enforcing a policy that outside stakeholders seeking an audience with Sunstein or his political deputy, Mike Fitzpatrick, must not reveal the content of a meeting, at pain of blacklisting from future meetings.   

In the interest of full disclosure, I must admit that I have apparently won a place on that blacklist. In a phone call several months ago a since promoted former OIRA press spokesperson told me that because I had blogged about something Sunstein said to me in a previous meeting, I would not be granted another meeting to talk about any issue unless I agreed to keep what transpired confidential. My other choice was to be “treated as a journalist,” which apparently means no or very limited access. I admitted some surprise and alarm at this policy, which had never been articulated at either of what I had thought were productive sessions with Sunstein and Fitzpatrick. After this strange warning, which my colleagues and I decided for everyone’s sake to try to ignore, we asked for a meeting on the important subject of how to assess the costs that carbon emissions could impose on Americans in the context of potential climate change controls, only to be stonewalled once again.

Mind you, this is an OIRA that took time to schedule some 43 meetings on the Environmental Protection Agency’s proposal to control the land disposal of coal ash laced with toxic, heavy metals, and 30 of those were with industry representatives opposed to the proposal. And OIRA said at the time that the reason it had had so many meetings to hear the same pitch over and over again was because OIRA staff was obligated to meet with any stakeholder who asked.

Beyond this strange example of opacity and retaliation at a critical White House office operating under a president who pledges fealty to sunshine in government, the issue of secret communications among agencies during a public rulemaking is even more serious as a policy matter. Consider the school yard beat-down the Environmental Protection Agency (EPA) took at the hands of OIRA and a group of self-interested and industry-friendly agencies and departments over that coal-ash proposal, which would have regulated for the first time the land disposal of 140 million tons of the stuff generated annually at power plants.  

Coal ash is laced with toxic heavy metals like cadmium, lead, and mercury because the scrubbers used to remove those pollutants as they go up the smokestack conveniently drop them directly into the ash, once again proving the basic physics that when you take bad stuff out of one medium (ambient air) you need to keep an eye on the others (water and soil).  In 2008, the walls of a huge pit in the ground burst, spilling 1 billion gallons of the inky sludge across 300 acres in Kingston Tennessee, destroying hundreds of millions of dollars worth of property, but fortunately claiming no lives. The pit was owned and operated by the federally funded electric utility run by the Tennessee Valley Authority (TVA), which has spent hundreds of millions of dollars responding to the catastrophe.

Remarkably enough, OIRA permitted TVA to take its place among the leaders of the pack administering the EPA beat-down, alongside the Department of Transportation (it buys coal ash at bargain prices to dump in road beds); the Department of Energy (bureaucratic booster of all aspects of electric utility operations); the Department of Agriculture (it encourages the use of coal ash on farm land to stabilize soil); and the Department of Interior (its permissive licensing allowed several mine shafts to be filled with coal ash to the grave detriment of nearby natural resources). Unsurprisingly, all of these self-interested agencies took bites out of EPA’s proposal too. OIRA not only facilitated their first shot at the proposal before any other stakeholder was allowed to register its views, it treated their concerns as equivalent to the position taken by EPA, the only agency with the expertise to make a scientifically-based, technically accurate, and dispassionate decision. The result was a revised proposal forced on EPA Administrator Lisa Jackson that includes a range of proposals, from the stringent controls she favored to a pitifully weak proposal that would maintain the status quo.

We got this rare glimpse behind the OIRA curtain because EPA – not OIRA – posted the interagency comments on its website, undoubtedly seeking to inform the public of what had transpired. OIRA has refused to post similar documents on other rules and even refuses to disclose the papers showing the changes it made to the agency’s original draft, in direct violation of the executive order.

The grave challenge faced by President Obama now is not suppressing ambitious rules detested by Big Business, but rather restoring the credibility of federal regulators from the Minerals Management Service (BP spill) to the Mine Safety and Health Administration (Big Branch mine disaster) to the Food and Drug Administration (salmonella-laced peanut paste that killed nine and sickened thousands) to the Consumer Product Safety Commission (sulfur-infused dry wall from China that has sickened home owners throughout the Southeast).  OIRA going opaque does not help, even a little bit.

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

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