February 10, 2010

Eye on OIRA: Coal Ash Visits by Regulation Foes Up to 28; OIRA’s Open Door Policy Creates Double Standard for Special Interests, Flouting Obama Ethics Initiatives

According to recent statements from the Office of Information and Regulatory Affairs (OIRA) press office, Administrator Cass Sunstein and staff are adamantly committed to granting an audience with OIRA senior staff to anyone who asks to see them about anything, and most especially pending health and safety rules. So not only are special interests granted second, third, fourth, and fifth audiences with OIRA staff after far more qualified political appointees and technical experts at agencies like the Environmental Protection Agency and the Food and Drug Administration have considered but refused to acquiesce to their demands, OIRA imposes no limits on how many times the same interest group—and even the same individual lobbyist—comes to the White House to whine. The most blatant example of this pseudo-transparency-turned-lobbyist-free-for-all is the uncontrolled swarming of special interests with respect to the pending EPA proposal to treat coal ash as a hazardous waste unless it is safely recycled. Here’s the scorecard as of February 6, 2010.

OIRA Meetings on Coal Ash, as of February 6, 2010

(Click links to see attendees and examine documents presented to OIRA staff.)

Parties Supporting EPA Proposal (5)

Parties Opposing EPA Proposal (28)

Meanwhile, back in the Oval Office, the President’s ethics office is in full swing, banning registered lobbyists from participating in formal advisory panels set up to help the government get expert advice on formulating policy  and promising to disclose all visitors to the White House. Those are worthwhile objectives. But you have to wonder if the President’s ethics honcho, Norm Eisen, is aware of what OIRA is up to, and gets that it is in fundamental conflict with the goal of running a clean process?

I’ve met with Cass Sunstein and raised these issues with him, and he’s responded by explaining that OIRA staff are equally willing to meet with public interest representatives. And he’s urged us to help OIRA get the word out that its door is equally open to those contacts. As we have countered, however, an open door policy that gives license for those with the greatest resources to swamp the process violates the spirit and even the letter of the President’s ethics policies. These problems are compounded by OIRA’s refusal to disclose fully the positions taken by the stakeholders, including OIRA staff.

The imbalance reflected in OIRA’s busy dance card is business as usual in Washington. Business and trade associations account for about 94 percent of registered lobbyists, according to a 2005 study, while public interest groups account for just 3 percent. A 2009 study by the Center for Public Integrity reported that industry groups worried about climate change legislation have hired four lobbyists for each individual member of Congress – more than 12 times the number lobbyists who work for environmental and health groups.

That numeric dominance on Capitol Hill is mirrored by higher rates of industry participation in rulemakings. A study of 40 rules promulgated by four agencies from 1994 to 2001 found that business interests filed 57 percent of the total number of comments, governmental interests 19 percent, and non-business, nongovernmental interests 22 percent. Public-interest-group comments constituted only 6 percent of the total of comments. Other studies have turned up the same sort of industry dominance.

OIRA staff do the President no favors by clinging slavishly to an open-door-to-all-lobbyists policy that distorts the process, looks bad, and wastes time. If OIRA wants to understand why regulated industries find a given environmental proposal objectionable, it should ask EPA staff to provide briefings on the topic. It’s EPA’s rule, after all, and EPA is the outfit with the substantive expertise on the subject, not OIRA. That would leave principal responsibility for environmental policymaking where Congress vested it – EPA and its Administrator, Lisa Jackson – and it would avoid the impression that the stakeholders with the biggest team of lobbyists can tilt the playing field to suit their profit-making interests.

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

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