Increased regulatory action under Obama means that OIRA has more regulations to review.
The Center for Progressive Reform (CPR) recently issued a report fiercely criticizing the Office of Information and Regulatory Affairs (OIRA) under the Obama Administration. Among other things, the report claims that OIRA:
- is a tool of industry and meets with industry far more often than it meets with groups that support regulation, even under the Obama Administration.
- treats the Environmental Protection Agency (EPA) as a “whipping boy,” meeting with industry over EPA rules more often than over other rules.
- ignores the limits on its review under Executive Order 12866, reviewing far more rules than just those that are “economically significant.”
- has changed more rules under the Obama Administration than under the Bush Administration.
On the surface, these claims paint a picture of an administration beholden to industry and cast doubt on claims of open government and balanced participation.
One does not have to dig too deeply below the surface, however, to realize that information omitted from the CPR report leads to a very different understanding of the operations of OIRA. As a former OIRA desk officer, I bristle at the assertions, even though they have been made in one form or another for 30 years and no amount of data to the contrary will stop them. Let’s look at each of the assertions above in turn.
OIRA does meet with industry more often than other groups. But OIRA repeatedly states that it meets with whoever requests a meeting. As CPR acknowledges, no one can produce an instance of a public interest group being denied access to OIRA. I have heard former OIRA Administrator Sally Katzen talk publicly about how she would beg public interest groups to request meetings with little response.
CPR argues that a lack of resources hampers public interest groups’ ability to meet with OIRA. However, from personal experience I can attest that in many meetings, lobbyists simply repeat the arguments they make in public comments and in legal briefs. If you have enough resources to file comments or engage in judicial cases involving rules, then you have enough resources to meet with OIRA. Most public interest groups cross this threshold.
The relationship between OIRA and the EPA is a long and controversial one. EPA rules are both the most costly and the most beneficial regulations that the federal government issues. Because the stakes are so high with EPA rules, it should be no surprise that OIRA holds more meetings about them than any others.
Similarly, the Obama Administration has issued more economically significant rules per year than the Bush Administration did. So it should be no surprise that industry has felt the need to request meetings with OIRA at least as often under Obama as it did under Bush.
The “economic significance” trigger in Executive Order 12,866 is only one of four triggers for OIRA review. The executive order is as much about presidential oversight as it is about cost-benefit analysis.
The other three triggers, particularly the one that authorizes OIRA to review rules that raise “novel legal or policy issues,” have long been used to ensure presidential review, through OIRA, of rules that do not meet the economic significance threshold of having an annual impact of more than $100 million. As long as the President maintains an interest in overseeing regulatory agencies, OIRA will review all potentially controversial rules.
Finally, the complaint that OIRA has changed more rules under the Obama Administration than under the Bush Administration has an easy explanation. It is a sign that President Obama has appointed strong advocates for public health to lead agencies, who are now are proposing stricter (and therefore both more protective and more costly) rules than they did under President Bush. OIRA will always suggest more changes to regulations that impose higher costs because its role is to serve as a balance to regulatory agencies. One would expect the number of changes to be greater when proposed regulations are stricter.
The CPR report also spends a lot of time criticizing OIRA as opaque, a criticism that has been made for 30 years. However, if OIRA were indeed opaque (as it was under the Reagan Administration), CPR would have had none of the data for its report. Under the previous three administrations, OIRA has become so much more transparent that today we may know more about its decision processes than even those of any of the agencies with which it interacts.
CPR is an advocacy group, and its recent report should be read as simply that, a piece of advocacy.
