Yesterday, six senators, led by Sen. Maggie Hassan of New Hampshire, criticized Trump administration "regulatory czar" Neomi Rao and her office for what appears to have been a slapdash review of a highly controversial Environmental Protection Agency (EPA) draft policy designed to stifle the agency's progress on advancing environmental and public health protections. Rao is the administrator of the White House Office of Information and Regulatory Affairs (OIRA), a small but powerful bureau located within the Executive Office of the President. For nearly four decades, OIRA has enjoyed broad and largely unchecked authority to interfere in pending rulemakings and to secretly quash or water down those measures that might be politically inconvenient for the president.
In a letter to Administrator Rao, the senators identified several irregularities with OIRA's review of EPA's proposed rule on the use of science to inform regulatory policy. Taken together, these irregularities suggest that OIRA's review was little more than a "rubber stamp" from a White House that is equally committed to defeating environmental and public health safeguards. Contrast that with the intense push-back from clean air and clean water advocates, legal experts, independent scientists, and the editors of the leading scientific journals, who quickly identified the rule as a significant threat to public health and the fundamental tenets of crafting public policy based on the best information available.
Consistent with other anti-regulatory measures, the EPA's proposed rule is tricked out with all the superficial trappings of good policy – transparency and rigor in regulatory science, in this case – that were in fact meant to obscure its harmful effects. The veil was quickly lifted by experts who understand that the rule could prevent policymakers from using many of the groundbreaking studies – for which the underlying data legitimately cannot be released or reproduced – that have underpinned critical public health protections such as limits on smog and particulate matter in the air or lead in drinking water. This, they noted, was intended as a feature of the proposal, rather than a bug.
CPR Member Scholars and staff are digging into the draft rule, described by several of our experts as impossibly vague, perplexing, and even worthy of a laugh and a hoot by experts in the field. For now, I'll focus on one key point in the process by which the proposal was published: OIRA's review.
The senators' letter highlighted several irregularities in OIRA's review including
- Unexplained changes in OIRA's recordkeeping for when the review was actually completed (it appears these changes were made to cover up for the fact that EPA Administrator Scott Pruitt issued the proposal prior to receiving approval from OIRA, a clear violation of Executive Order 12866, which governs the OIRA review process);
- An extremely short review period that lasted only three business days, which is all the more astounding considering the rule's complexity, novelty, and highly controversial nature;
- The lack of supporting economic analyses for the proposal; and
- OIRA's apparent refusal to accept meeting requests with outside groups while the proposal was undergoing review (this despite OIRA's claims that it observes an "open door" policy in which grants any request for a meeting that it receives).
That these irregularities would happen on Administrator Rao's watch is particularly rich. As the letter notes, Rao had earlier testified before the Senate Homeland Security and Governmental Affairs Committee that she was opposed to the kind political interference in agency science that the EPA's proposal would make official agency policy. What's more, as an academic and now as OIRA Administrator, Rao has consistently advocated for an expanded role for OIRA in the rulemaking process, claiming – like other conservative opponents of regulatory safeguards – that OIRA's reviews are vital for ensuring rigor, transparency, and integrity in agency regulatory decision-making. OIRA's review of the EPA's anti-science proposal, however, was notable for its complete lack of rigor, transparency, and integrity.
This is hardly the first time that OIRA has fallen down on the job during the Trump administration. Infamously, last summer, OIRA gave the thumbs up to an absurdly sloppy cost-benefit analysis that the EPA had produced to justify its repeal of the Obama-era Waters of the United States, or Clean Water, rule. And just a few months ago, OIRA approved a controversial Department of Labor rule that would allow employers to steal their workers' tips, even though the rule apparently did not have a cost-benefit analysis to support it. (It was a later revealed that the Department of Labor tried repeatedly but failed to produce a cost-benefit analysis that would justify the rule; when they were ultimately unable to cook the books, they abandoned the effort altogether.)
Nor has the Trump administration pioneered the practice of politicized review at OIRA. For example, my colleagues and I at CPR have documented how, during both the George W. Bush and Barack Obama presidential administrations, OIRA's lobbying meetings served as an avenue for politically powerful interests to influence regulatory policies far from public scrutiny.
For years, the progressive community has been rightly critical of OIRA review and cost-benefit analysis as largely a political farce. Despite the claims of their supporters, OIRA's review and cost-benefit analysis methodologies, which are rife with intractable theoretical and practical flaws, do not improve the quality of agency decision-making or serve as a means for injecting objectivity and analytical rigor into the rulemaking process. To the contrary, repeated experience has shown that OIRA review can speed up or slow down a rule, depending on its political expediency. Similarly, cost-benefit analysis in OIRA's hands is rarely more than a form of post hoc rationalization used to support regulatory decisions that were made based on other, often improper political considerations.
OIRA's review and cost-benefit analysis have been permitted to play this improper role largely because of insufficient oversight from Congress over the years. Let's hope the senators' recent letter signals greater attention from the legislative branch over these influential regulatory institutions.