Questions Arise as Senate Prepares to Take Up Nomination for Key Trump Regulatory Post

by Robert Verchick

June 06, 2017

Tomorrow, the Senate Committee on Homeland Security and Governmental Affairs will examine and likely vote on President's Trump's selection for Administrator of the Office of Information and Regulatory Affairs (OIRA). OIRA is the most important government office most Americans have never heard of. It is the depot through which all regulatory freight must pass, the place where ideas go to be sorted, weighed, green-lighted, or buried. It's the ganglia of the president's bureaucratic brain. At the center of those fluttering gray cells, if Trump gets his way, will be Neomi Rao.

Rao comes to the position with scant management experience and little in the way of a record. But as a professor at George Mason's Antonin Scalia Law School, she has managed to raise serious questions about how she would evaluate the health and environmental protections we all rely on.

Following Rao's nomination in April, I joined several CPR Member Scholars and staff in releasing a report on what we considered pretty troubling positions for anyone hired to keep America safe. She downplayed the importance of standards for drinking water and safe food. She seemed to ignore the way real people think about their lives, preferring instead highly technical formulas that squeeze health, well-being, and dignity into truncated dollars-and-cents calculations. What's more, she hoped to force that system on even the government's independent agencies that Congress intended to keep separate from presidential meddling. These are the agencies that protect us from financial scams and dangerous consumer products. 

Now the Homeland Security and Governmental Affairs Committee has the opportunity to ask Rao several key questions during her confirmation hearing. Here are just some of the things the American people deserve to know: 

  • Rao's academic writings suggest that she disagrees with the way our country has designed independent agencies like the popular Consumer Financial Protection Bureau (CFPB) and the Consumer Product Safety Commission (CPSC). She also appears to assert that these agencies should be subjected to the same kind of OIRA review process that applies to executive branch agencies – a process that leads to frequent delays, watered down protections, and greater risks to our health, safety, and environment. That, of course, would defeat the purpose of creating these independent agencies in the first place. Senators should ask Rao if she really thinks Congress was wrong to attempt to shield independent agencies from political interference and whether, as OIRA Administrator, she would ignore the will of Congress and the American people by pushing for centralized review authority over such agencies.
     
  • As CPR has noted several times since late January, the Trump administration's anti-protections executive orders – particularly its "1 in, 2 out" regulatory budgeting order that requires agencies to arbitrarily eliminate two public protections for every new rule they develop – are deeply problematic and potentially damaging. At tomorrow's hearing, senators should ask Rao if she supports the regulatory budgeting approach the "1 in, 2 out" executive order requires. If so, does she now reject cost-benefit analysis as part of the federal regulatory process, given that the "1 in, 2 out" order appears to require agencies to ignore the benefits of rules and focus on the costs? If she thinks there's an intellectually honest way to reconcile the two, she should explain this new theory.
     
  • One of the reasons many Americans don't know about OIRA is because it largely operates behind closed doors, away from the view of the press and the public. Advocates, reporters, and the Government Accountability Office (GAO) have all noted and criticized this secrecy and lack of transparency, and since 2003, GAO has issued more than two dozen recommendations for improvements. Considering that OIRA makes decisions that ultimately affect our health, safety, and quality of life, senators should press Rao on whether she'll open the office's doors so it operates in a truly transparent, accountable fashion.
     
  • Senators should also ask Rao important questions about her approach to cost-benefit analysis, especially when it comes to benefits that can't be easily quantified or raise serious ethical concerns when agencies attempt to do so. For example, does Rao think that the value of a human life can be quantified, and if so, what does she think it's worth? Does she stand by her assertions questioning the very value of human dignity? If she's changed her mind on that issue, how much is a person's dignity worth to her, or does she think it's not valid to try to convert such values into monetary terms? 

Some of these questions may seem technical. But OIRA affects us all, and the way it operates and its approach to regulatory safeguards – or more likely under the Trump administration, its approach to deregulation – has serious impacts on our safety at home and at work, the quality of the air we breathe and the water we drink, and our overall quality of life. That's why senators must not give Rao a pass. If she wants to be the brains of this operation, we need to know what she's thinking.

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Robert R.M. Verchick holds the Gauthier ~ St. Martin Eminent Scholar Chair in Environmental Law at Loyola University, New Orleans, is the Faculty Director of the Center for Environmental Law at Loyola, and is a Senior Fellow in Disaster Resilience Leadership, Tulane University. He is the President of the Center for Progressive Reform.

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