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Thursday, April 27, 2006

OIRA Meddling Leaves Agencies Vulnerable in Court
OIRA's meddling in regulations has already been dealt with fairly extensively in the context of separation of powers and the imperial presidency, but CPR member scholar Lisa Heinzerling now has a (characteristically brilliant) law review article framing OIRA's interference as an admin law problem:

In recent years, the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) has asserted a remarkable degree of authority over administrative agencies’ rulemaking processes. One of the ways in which OIRA has exercised power over agencies has been to foist upon them its own views about the requirements of the statutes under which they operate. The most notable trend in this area has been OIRA’s insistence on converting technology-based environmental laws into cost-benefit laws. In OIRA’s hands, for example, the Clean Water Act ... is being transformed from a technology-based regime into a cost-benefit regime.
I will argue that this transformation is illegal. Given the plain language of the statute, it would be illegal even if the Environmental Protection Agency (EPA)—the agency charged with implementing the Act—had chosen this course. But EPA did not choose this course; OIRA did. OIRA’s role in transforming EPA’s understanding of the Act robs EPA’s interpretation of any deference it might have been given under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. if EPA itself had chosen the interpretation.

Heinzerling uses the Clean Water Act as a case example, but her argument has much, much larger relevance:

I use the Clean Water Act, and in particular a rule governing cooling water towers for power plants, as my case study. But the analysis applies whenever OIRA foists upon an administrative agency an interpretation of a statute that the agency has Congressional authority to administer. When OIRA’s interpretation, not the agency’s, prevails, the agency’s reluctant embrace of OIRA’s views does not deserve the deference Chevron might otherwise afford.

Download the article - Lisa Heinzerling, "Statutory Interpretation in the Era of OIRA," __ Fordham Urb. L.J. ___ (forthcoming).

Posted by Robert Shull, 10:59:48 AM

Tuesday, April 25, 2006

Spring 2006 Unified Agenda Now Available
Agencies released their Spring 2006 regulatory agendas on Monday, April 24. To get the low-down on the agencies’ plans for the coming six months and what they accomplished in the last six month period, go to the Federal Register.

Posted by Genevieve Smith, 03:16:12 PM

Thursday, April 20, 2006

Linking Tobacco to Risk Assessments
Tobacco industries employed scientists “to convince public health officials not that cigarettes were safe, but that there was not yet sufficient evidence of their danger to justify limiting places where tobacco could be smoked,” according to Environmental and Occupational Health Professor David Michaels. Now, under laws like the Data Quality Act, manufacturing doubt to keep harmful substances in the air and on the market is common practice. In a great Op-Ed for the Baltimore Sun, Michaels links the historic example of the tobacco industry manufacturing uncertainty to keep people smoking with OMB’s new bulletin on risk assessment. Michaels explains how OMB’s onerous new risk assessment guidelines for agencies create another way to use uncertainty as an excuse to not regulate:

Except when political appointees override the judgment of career federal scientists (as when a White House staffer rewrote an Environmental Protection Agency report on global warming to highlight scientific uncertainty), the nonpolitical staff at regulatory agencies can generally see through these crude efforts to create doubt. And Congress has refused to pass the Bush administration's attempts, such as the initiative with the Orwellian name "Clear Skies," to weaken environmental laws.
Clearly frustrated, the White House is making a run around Congress to change the way the agencies conduct risk assessments, the studies that form the basis for health protections. The Office of Management and Budget has proposed mandatory "guidelines" that would require agencies to conduct impossibly comprehensive risk assessments before issuing scientific or technical documents, including the rules polluters have to follow.
What appears at first blush to be good government reform is in fact a backdoor attempt to undermine existing environmental laws. If this is successful, the uncertainty manufactured by polluters will be written into federal risk assessments, providing the justification to weaken public health protection.

Posted by Genevieve Smith, 03:30:27 PM

Thursday, April 13, 2006

More White House Spin
OIRA's annual draft report on the costs and benefits of regulations is now out. For whatever reason -- cynically, one might assume the election year has something to do with it, or maybe just the lack of an official OIRA administrator while John Graham's replacement is still being sought -- the White House did not use it this year as a vehicle for anti-regulatory shenanigans. No hit list; no new policy on, say, Quality-Adjusted Life Years; nope, nothing of that sort at all.

Sure, there's still an extended section spinning the Bush administration's failures to protect the public as some sort of success, but that's par for the course these days.

The report is open for public comment through July 12.

Posted by Robert Shull, 03:49:15 PM

Thursday, April 06, 2006

How Now, Mad Cow?
Despite the discovery of three cows infected with bovine spongiform encephalopathy (BSE), or mad cow disease, long overdue measures to ensure the safety of the food supply and to keep foreign markets open to American beef have been stalled. Find out more in Cow Sense: The Bush Administration's Broken Record on Mad Cow, a new white paper from CSPI, OMB Watch, and the Consumer Federation of America, documenting how special-interest lobbying at federal agencies and at the Office of Management and Budget (OMB) helped keep reforms, such as a nationwide animal identification system and a strong regulation governing cattle feed, from being finalized.

Posted by Robert Shull, 05:31:05 PM

Sunday, April 02, 2006

White House Says, 'Let's Have More Arsenic in Drinking Water'
You might have read in the news about an EPA plan to make it easier for drinking water systems to reduce the quality of your drinking water, even when it comes to such hazards as arsenic, radon, and lead. What hasn't been reported is that the push for the policy came from the White House itself.

The White House released a report in 2004 that invited industry to nominate regulatory protections to be weakened or eliminated, and in that report OMB offered its own list of rollbacks. One of the rollback demands on the White House's own hit list was a call for EPA to be looser with its Safe Drinking Water Act authority to grant "economically disadvantaged drinking water systems" variances from safe drinking water standards.

After all, god forbid that poor communities be entitled to the same level of safe drinking water that everyone else enjoys.

Now EPA has bent to OMB's will. A March 2 Federal Register entry that proposes allowing small drinking water systems to serve us water with up to three times the maximum contaminant levels! The standard of affordability that would open the way to variances would also change: the proposed rule would count spending as little as $100 per year (which NRDC notes is a mere 0.25% of median household incomes) on drinking water as unaffordable.

Here's a tasty example: if your drinking water system (which may be owned by a distant corporation rather than your local government) has arsenic in the water at 29 parts per billion -- well over the standard of 10 parts per billion that the Bush administration threatened to roll back until the public cried out -- it can be considered safe.

Learn more about what's at stake from NRDC's safe drinking water program.

Posted by Robert Shull, 01:03:18 PM

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