Exempting Climate Mitigation from OIRA Review

by David Driesen

January 24, 2013

Cross-posted from RegBlog.

Nobody seems to have noticed, but the Center for Progressive Reform (CPR) recently recommended abolition of review by the Office of Information and Regulatory Affairs (OIRA) based on cost-benefit analysis (CBA). Its report on recommendations for the second Obama Administration made this proposal the sixth item in a list of seven executive orders that Obama could issue with a "Stroke of the Pen" (from the report’s title). In place of CBA-based review, which has often stymied or delayed needed environmental protections, CPR recommends a complete OIRA role reversal, charging it with addressing regulatory delay and helping agencies “achieve their statutory missions.” CPR also recommends abolishing review of minor rules altogether and improving transparency. 

What was first on CPR’s list of “stroke of the pen” reforms? An executive order to take action on climate mitigation – which would include a detailed list of regulatory actions with accompanying deadlines. 

My hunch is that the Obama Administration is going to be more inclined to adopt recommendation number 1 than recommendation number 6, particularly given the attention to the subject in the President’s Second Inaugural Address.   This does not mean that CPR erred in recommending abolishing CBA-based OIRA review. CPR is a virtual think tank of legal scholars, not a traditional environmental group, and it should put forward sound reform proposals that might be adopted, if at all, only after a very long period of debate and discussion.

But if the Obama administration wants to move on a climate disruption mitigation agenda with the sense of urgency that the issue requires, it will prove ineffective if it allows OIRA to continue on a business-as-usual basis. Most environmental law scholars are not just eager to have the most important environmental issue we have ever faced addressed; they are terrified that our current legal institutions cannot address it with the speed and thoroughness that is required. This need for effectiveness and speed arises not just from the potential for Sandy-like disasters and worse, although that would be reason enough, but because of the fundamental dynamics of climate disruption.

As Howard Latin emphasizes in a recent book, every year’s greenhouse gases remain in the atmosphere for many, many decades and even centuries, adding to a cumulative store of admissions. For all practical purposes, climate disruption, once it gets going, is irreversible through mitigation. If we simply reduce emissions without eliminating them altogether, we add to that atmospheric store of greenhouse gases every year, albeit at a slower rate. Hence, we must attack this problem with an urgency at odds with the tradition of long drawn-out debates between OIRA and the Environmental Protection Agency (EPA) about how and whether to proceed and of EPA not even proposing measures that they think will trigger long battles with OIRA’s staff. In short, Obama needs to let EPA off the leash that it has been on for some time if he wants to attack this problem with the urgency it deserves.   

If the Obama Administration is not prepared to completely reorient OIRA review generally (as CPR proposes), it should at least exempt measures addressing global climate disruption from that review—all measures, major and minor. Even supporters of CBA have noticed how poorly it works in the area of climate disruption. Economists’ estimates of greenhouse gas abatement’s benefits and costs vary widely based on the assumptions employed in various economic models, so widely that published CBA can be used to justify drastic actions or doing next to nothing. 

The Obama Administration convened an interagency working group to try and reconcile these studies, but it did not succeed. It earned criticism not just from CBA’s opponents but also from CBA practitioners like William Nordhaus and proponents like Eric Posner and Jonathan Masur. The only major commonality underlying all of the disparate CBAs involves their complete failure to come to grips with the most important feature of climate disruption, the possibility for a truly disastrous outcome, as the Harvard economist Martin Weitzman has pointed out. If there was ever an issue that merited an exemption from OIRA review, this is it. The critical question is precisely the one EPA, not OIRA, can address: not how much reduction is “optimal,” a question nobody can answer, but what can we feasibly do to minimize climate disruption.

EPA can aggregate sufficient information to make informed decisions about how to appropriately use existing statutory authority to address this issue without outside “help.” And OIRA has almost never in its history helped EPA regulate more quickly and stringently. It has consistently, regardless of whom is at the helm, acted as a drag on effectively attacking urgent problems. We can no longer afford to waste time and scarce government resources on duplicative time consuming double checks in tackling such an urgent issue.

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Also from David Driesen

David M. Driesen is a University Professor at Syracuse University College of Law, and an Adjunct Associate Professor at the State University of New York College of Environmental Science and Forestry. He holds a J.D. from Yale Law School. He is a member of the editorial board of the Carbon and Climate Law Review, published in Berlin and Environmental Law, published in Oxford.

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