Submitted by Mike Krieger via Liberty Blitzkrieg blog, [8]
But in practice, OIRA operates largely in secret, exempt from most requests under the Freedom of Information Act. It routinely declines to release the changes it has proposed, the evidence it has relied upon to make them, or the identities and affiliations of White House advisers and other agencies’ staff it has consulted. OIRA doesn’t even disclose the names and credentials of its employees other than its two most senior officials.
In 2013 the Administrative Conference, an independent federal agency that reviews government administrative processes, released a study [9] of OIRA’s effect on the application and interpretation of science the agencies gather and analyze to write rules. In examining a group of air-quality regulations, the study found that most of OIRA’s suggestions involved substantive changes. The report concluded that in some instances, the office has proposed changes to the basic science underlying the rules. These included revising numbers in tables created by the EPA, altering technical discussions and recommending different standards altogether.
- From ProPublica’s extremely important article: Lobbyists Bidding to Block Government Regs Set Sights on Secretive White House Office. [10]
Have you ever heard of the Office of Information and Regulatory Affairs, otherwise known as OIRA? Yeah, neither had I.
As someone who prides himself on being a relatively informed citizen, it is always shocking and disturbing when I learn of a powerful organization operating in the shadows of America’s faux democracy with which I am almost entirely unfamiliar. While I’m sure I’ve read many articles in which OIRA was mentioned, I had never fully understood exactly what it is, and how it is used by lobbyists and large corporate interests to further entrench the established oligarchic power structure. We can thank ProPublica for providing this service.
Let’s start off with a little background. OIRA was created in 1980, and shortly thereafter the Reagan administration greatly expanded its powers by signing an executive order that gave the office the authority to review all federal rules. Ever since then, it has been used to rewrite or entirely block regulations from almost every regulatory body imaginable. While the initial idea of a government body to review newly proposed regulations and gather additional feedback before implementation is a noble one, in practice it has amounted to nothing more than the censorship of science in the name of protecting large corporate interests. Most importantly, all of this happens in total darkness.
For example, ProPublica notes that OIRA is disturbingly exempt from most requests under the Freedom of Information Act (FOIA). For example, the public cannot even find out the qualifications of the people who make drastic changes to proposed environmental regulations. In one specific case regarding a proposed EPA rule, we see an economist and a lawyer completely overruling peer-reviewed science.
Significantly, OIRA doesn’t just interfere every once in a while. As ProPublic notes: “84% of the EPA’s proposed rules from 2001 to 2011 featured changes suggested by OIRA.” As mentioned earlier, the American public has no idea what was changed, why, or the qualifications of the people who made the changes. All of that is intentionally kept completely secret. Surely, in order to protect us from terrorists or something.
Even more worrisome, OIRA power is not only wielded for corporate profit protection purposes, but for political purposes as well. For example, according to OIRA’s governing executive order, it is supposed to complete its review within 90 days of receiving a proposed regulation. Nevertheless, “delays reached an all-time peak under President Obama between 2011 and 2013.”
High level EPA officials believe this was due to the 2012 election and not wanting to review any potentially controversial environmental regulations ahead of it. Quite often an OIRA strategy is to simply never review a proposed regulation until the regulatory body gives up and pulls it.
The anti-democratic, secretive and feudal power vested in the OIRA is an issue with which I was entirely unaware, but it is extremely important nonetheless. Here are some excerpts from ProPublica’s very important article [10]:
A series of executive orders over the past three decades have given OIRA significant authority to reassess rules on every imaginable subject, from health care to the environment to transportation. The office shares early drafts of rules with the president’s top advisers as well as other Cabinet-level agencies that might object.
Although some on OIRA’s team have degrees in science and engineering, former officials say its leadership and staff are largely drawn from the realms of economics, law and public policy. Regardless, the office does not hesitate to rework agency rules that were years in the making and backed by peer-reviewed science. Often, OIRA officials make a proposed rule appear too costly by revising the calculation of benefits downward. As it did with the silica limits, the office can also prolong the process, holding regulations in limbo for months and sometimes years.
But in practice, OIRA operates largely in secret, exempt from most requests under the Freedom of Information Act. It routinely declines to release the changes it has proposed, the evidence it has relied upon to make them, or the identities and affiliations of White House advisers and other agencies’ staff it has consulted. OIRA doesn’t even disclose the names and credentials of its employees other than its two most senior officials. (Repeated requests to the office for the backgrounds of its employees drew no response.)
According to a study [11] by the Center for Progressive Reform, a nonprofit research and educational organization critical of the office, 84 percent of the EPA’s proposed rules from 2001 to 2011 featured changes suggested by OIRA as did 65 percent of other agencies’ regulations. Officially, OIRA’s “edits” are suggestions but they carry the weight of the White House and are typically accepted by the agency proposing the rule.
In 2008, an OIRA review by the Bush administration deleted a provision intended to protect plant life from the effects of ozone, a key component of smog. The EPA had proposed a sharp reduction in the permissible levels of ozone to protect forests and vegetation, which naturally remove carbon from the atmosphere. According to an investigation [12] by the House Committee on Oversight and Government Reform, the White House summarily overturned the unanimous recommendation of the EPA’s Clean Air Scientific Advisory Committee and an array of expert testimony.
In 2013 the Administrative Conference, an independent federal agency that reviews government administrative processes, released a study [9] of OIRA’s effect on the application and interpretation of science the agencies gather and analyze to write rules. In examining a group of air-quality regulations, the study found that most of OIRA’s suggestions involved substantive changes. The report concluded that in some instances, the office has proposed changes to the basic science underlying the rules. These included revising numbers in tables created by the EPA, altering technical discussions and recommending different standards altogether.
Congress created OIRA in 1980 to prevent federal agencies from demanding excessive amounts of data from public and private parties. President Reagan greatly expanded its powers, signing an executive order that gave the office the authority to review all federal rules. This was an important change, since most laws say the rules are to be written by the relevant Cabinet agency, not the president and his aides. At the time, Reagan’s move kicked up controversy — still alive today — about whether it was appropriate for the White House to have such a direct say in government rulemaking.
Since then, both Republican and Democratic presidents have signed executive orders enshrining OIRA’s pivotal role.
As usual, bipartisan criminality.
Cass R. Sunstein, a prominent legal scholar who led OIRA from 2009 to 2012, rejects many criticisms of the office, namely that it lacks transparency and that its suggested changes and delays are politically motivated.
Sunstein, now a law professor at Harvard, responded neither to ProPublica’s requests for an interview nor to written questions.
Once I realized Cass Sunstein was involved in this thing it all started to make perfect sense. Sunstein is one of the most unabashedly authoritarian Americans operating in the halls of government and academia today. As the Washington Post noted last year:
While at Harvard in 2008, Sunstein co-authored a working paper [13] that suggests government agents or their allies “cognitively infiltrate” conspiracy theorist groups by joining ”chat rooms, online social networks or even real-space groups” and influencing the conversation.
He is such a pernicious character, I wrote a post highlighting his dastardly ways last year. Please familiarize yourselves with the following: Obama Picks Cass Sunstein, America’s Joseph Goebbels, to Serve on the NSA Oversight Panel [14].
Now back to ProPublica:
In the weeks leading to OIRA’s completed review of the coal ash limits, a number of utility industry lobbyists and lawyers met [15] with the office. While OIRA makes public a list of attendees and documents given to the office’s representatives at meetings, it does not disclose the substance of their discussions. Such conversations are not unusual; any member of the public can meet with OIRA to discuss a rule. But the office has become a standard stop on the lobbying circuit for industries facing tighter regulations.
A 2003 Government Accountability Office study [16] found that “regulated parties,” typically corporations or their lobbyists, frequently get what they want after meetings with OIRA. Sometimes, the language of the edited rule is similar to that proposed by the regulated parties themselves.
The office also recast the EPA’s scientific findings. The agency initially stated that using ponds for storing the most toxic form of coal ash, the emissions captured in the smoke stack’s final filter, did “not represent the best available technology for controlling pollutants in almost all circumstances.” Revisions made during OIRA review recommended eliminating this conclusion, giving no explanation why. Other changes included softening data, such as reducing coal-fired power plants’ share of toxic pollutants discharged to surface water from “at least 60 percent” to “50-60 percent.” The post-OIRA version also recommended reducing the projected benefits of the EPA’s higher standards, which the agency did.
The EPA reached its findings for handling coal ash after almost 10 years of extensive data collection, modeling and analysis. This work required the knowledge of biologists, chemists, engineers and toxicologists working on a team that varied in size from about eight to around 30 people at various phases. The EPA lists the staff in its Office of Water responsible for the rule in the document itself, on the agency’s website and in press releases.
It is difficult to know the qualifications of the people at OIRA who rewrote the EPA’s draft rule. The only credentials disclosed by its website are those of the current administrator, Howard Shelanksi, who has a Ph.D. in economics, and his deputy, Andrei Greenawalt, a lawyer who was a policy adviser to the chief of staff from 2011 to 2013. ProPublica’s request to the OMB for a list of OIRA staff went unanswered, as did repeated requests for an interview with Shelanski. OIRA also failed to respond to written questions about its lack of transparency.
According to OIRA’s governing executive order, the office is supposed to complete its review within 90 days of receiving a regulation, with the option of one 30-day extension. But rules often gather dust for far longer. As documented in an Administrative Conference analysis [17], delays reached an all-time peak under President Obama between 2011 and 2013.
Least transparent administration ever.
High-level EPA staff interviewed for the analysis thought OIRA reviews took so long because of political concerns over contentious rules in the lead-up to the 2012 general election.
According to the report, “The employees said their agencies were instructed that such rules were not to be issued unless deemed absolutely necessary (e.g., judicial deadline) or if it could be shown they were not controversial (e.g., clear net benefits).” Such instructions weren’t issued in writing, but conveyed verbally by agency administrators who had been to meetings with key White House officials, the employees said.
The Administrative Conference report noted that in June 2013, 141 rules were under review at OIRA, of which over half had been there for more than 90 days. About half of those had been under review for more than a year, and 26 more for over two years. The rules were from a variety of agencies, including the EPA and the Departments of Energy and Labor.
Curtis Copeland, former specialist in American national government at the Congressional Research Service and author of the 2013 study for the Administrative Conference said, “What I heard when talking to the agencies was that OIRA often recommends agencies withdraw rules. Then it can all be done in the dark.”
As Copeland wrote in a 2009 Congressional Research Service survey [18] of OIRA, “some agencies have indicated that they do not even propose certain regulatory provisions because they believe that OIRA would find them objectionable.”
Morrall, the former deputy administrator of OIRA, acknowledged the lack of transparency and defended it on the grounds that it might be politically damaging if the public learned more about the office’s inner workings. “To do our job we don’t need what went into our decisions out in the public domain because opponents could use that against the president.”
So once again political interests trump the public interest. These cronies aren’t even ashamed to admit it publicly at this point.
The GAO’s 2009 follow-up report found that OIRA and the agencies had failed to adhere to seven of eight transparency recommendations made in its 2003 assessment. The one measure OIRA had taken was to disclose logs of meetings with people outside government, which it continues to do, although they are nearly impossible to search, contain minimal, sometimes-unclear information about the attendees, and have scant information about what was discussed.
Rena Steinzor, a law professor at the University of Maryland and current president of the Center for Progressive Reform, the group critical of OIRA, has called for the office to be stripped of its rulemaking powers, terminating centralized White House regulatory review. In a 2012 law review article [19], Steinzor wrote that the Executive would still have rulemaking power: “The President can exert sufficient control over rulemaking through the political appointees he has selected to lead the agencies.”
Got Democracy?
