EO 13422

Erecting New Obstacles to Protecting Health, Safety and the Environment

In January 2007, President Bush issued an Executive imposing a series of new and unprecedented steps making it harder for administrative agencies to adopt regulations protecting health, safety and the environment.

 

At the heart of Executive Order 13422 is an effort to tighten the White House’s control of the regulatory process and to establish criteria for regulations that make it harder for agencies to enforce statutes that protect against a variety of health, safety and environmental hazards. In February 2007 testimony before U.S. House of Representatives’ Committee on Science and Technology Subcommittee on Investigations and Oversight, CPR Member Scholar David Vladeck highlighted the dangers of the Administration’s radical approach:

  • The Executive Order Usurps Congressional Authority By Directing Agencies to Justify Regulatory Actions on the Basis of Market Failure. The “market failure” super-mandate appears nowhere in statute. It is not in keeping with the decisional criteria that Congress has established, and it cannot be reconciled with the dominant thrust of the health and safety statutes, which are designed to prevent deaths and injuries by avoiding market failure, rather than waiting until it is too late and market failure is evident.
  • The Executive Order Unwisely Expands OIRA’s Authority to Guidance Documents. Whatever the wisdom of centralized OIRA review of binding agency rules, the same arguments do not extend to centralized review of non-binding agency guidance. Hundreds of guidance documents are issued each year, often in response to emergencies or other time-sensitive developments. Requiring agencies to stop dead in their tracks to justify the provision of guidance on “market failure” grounds cannot be defended on policy grounds; nor can giving OIRA the authority to meddle in the substance of significant agency guidance.
  • The Executive Order Resurrects the Discredited Concept of a Regulatory Budget. Amended section 4(c)(1)(B) forbids any agency — even the so-called “independent” agencies — from commencing any rule-making unless the agency’s regulatory plan sets forth, among other things, “the agency’s best estimate of the combined aggregated costs and benefits of all its regulations planned for that calendar year.” These estimates give OIRA the ability to effectively cap the amount of compliance costs an agency may impose in a calendar year, a power OIRA has long coveted. Nothing in the statutes Congress has enacted give OIRA the right to ration the protection to be provided to the American people through regulation.
  • The Executive Order Further Politicizes the Regulatory Process. Executive Order 13422 requires each agency “to designate one of the agency’s Presidential Appointees” to serve as the agency’s regulatory policy officer. At the same time, the Order greatly expands the duties of the policy officer, providing that, “[u]nless specifically authorized by the head of the agency, no rulemaking shall commence nor be included on the [agency’s annual regulatory] Plan without the approval” of the policy officer. Nothing in the Order suggests that the political appointee must also be subject to Senate confirmation. This is a troubling, and no doubt deliberate, omission. The statutes Congress enacts to delegate power to agencies designate the agency head — and not a subordinate — as the decision-maker. Congress does this to ensure that decisions are made by an official accountable to Congress as well as the President.

 

The Order required federal agencies to be in compliance with its terms by July 2007. Efforts by Congress to thwart the Order have so far failed. The House of Representatives included a provision in an appropriations bill that would have forbidden the White House to spend money enforcing the Order, but the bill never became law.