In a rare public appearance at the Brookings Institute Wednesday, Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein is quoted by BNA’s Daily Report for Executives saying that his ambitious plans for revamping Executive Order 12,866 – the document that governs much of the process of regulating, and particularly OIRA’s role in it –have been tabled for the time being as he and his staff study the lengthy comments presented by a broad range of industry and public interest groups. “So what we’ve been doing under the existing framework is working to implement the President’s agenda in a way that is also alert to the content of the comments we’ve gotten,” he explained.
Meanwhile, outside the event, a small group of demonstrators, including one dressed as Sesame Street character Oscar the Grouch, demonstrated against “Ash Sunstein,” whom they accused of working to kill an EPA proposal to regulate the disposal of toxic metal-laced coal ash that is now dumped into unlined pits in the ground. You can see a snippet of both the protestors and Sunstein’s remarks on YouTube.
The juxtaposition of the two events had that quirky edge that, well, makes democracy and free speech entertaining! Of course, Sunstein has had more than his share of free speech aimed at him since he was nominated. CPR Member Scholars raised concerns early on about his embrace of cost-benefit analysis, a tool that the Bush Administration used to water down or kill outright all kinds of needed protective regulations, particularly environmental ones, and we’ve stayed after OIRA since then. But Sunstein also came under figurative semi-automatic fire from Second Amendment “enthusiasts,” whose distortions of Sunstein’s views on animal rights led to a conservative blogosphere feeding frenzy.
In this case, however, the quirky humor of the protestors highlighted a very real issue. The proposal to regulate coal ash was developed by career experts and is strongly supported by Lisa Jackson, EPA Administrator and the official directly accountable for Obama environmental policies. OIRA’s role has been to serve as an ad hoc and secret court of appeals for opponents of the rule from the coal power plant and coal ash reuse industries. Without holding a single public hearing, offering a single public disclosure about its thinking, or even promising to explain what happened to the EPA proposal during its review, OIRA has granted 34 separate audiences with “stakeholders,” 28 for industry representatives and six for environmentalists. Indeed, in his appearance at Brookings, Sunstein declined to comment on OIRA’s secretive deliberations, sounding rather like an all-powerful judge.
According to an unnamed former EPA lawyer quoted in the Daily Executive article, this system of OIRA review provides needed “leavening” to regulatory agency policy development: “You need a central force in the administration to start weighing all this stuff and trying to impose some kind of order, some kind of cost-benefit review.” Or, in other words, anyone who thinks that Jackson is really in charge at EPA can rest assured that any overly enthusiastic views regarding the protection of the environment she may hold will be moderated by OIRA’s couple of dozen economists, the anonymous bureaucrats whose word is final and who are rarely held accountable to anyone. Jackson is treated as a member of the Cabinet, as well she should be. The stalemate between EPA and OIRA on coal ash leaves open the question whether the OIRA trump card is reflective of the way President Obama wants his railroad run.
The decision to table Sunstein’s rewrite of Executive Order 12,866 could be read either way. The text of the existing order, which remained the same during the Clinton and George W. Bush administrations, is sufficiently elastic to support an OIRA that was perceived as benign (Clinton) and an OIRA that was perceived as the killing ground for regulation (Bush). Perhaps Sunstein decided he had endured enough pointless controversy during his nomination fight and simply wanted to get back to running his small office.
Or perhaps Sunstein overreached and the changes he wanted to make to EO 12,866 were protested by senior political appointees serving at OIRA’s target agencies—EPA, of course, but also the Food and Drug Administration, the Occupational Safety and Health Administration, the Consumer Product Safety Commission, and the National Highway Traffic Safety Administration. Perhaps the agencies found an ally in someone else in the White House, who blocked these more ambitious plans to expand the influence of Sunstein’s office. We may never know, at least not until the Administration’s various tell-all books start coming out down the road.
The protestors outside Cass Sunstein’s Brookings appearance this week did a nice job of introducing a little humor to a decidedly serious topic. Unfortunately, there’s not a lot to laugh about when it comes to OIRA’s iron grip on protective initiatives from the political appointees – men and women who also believe they are faithfully carrying out the president’s agenda, and who can claim genuine expertise on the subjects they regulate, the statutory authority to regulate that OIRA lacks, and confirmation by the U.S. Senate to do the job.