Lobbyists Bidding to Block Government Regs Set Sights on Secretive White House Office

ProPublica Staff

Washington, DC, United States (ProPublica) – by Heather Rogers, Special to ProPublica,

In early 2011, after years of study, the Occupational Safety and Health Administration moved to reduce the permissible levels of silica dust wafted into the air by industrial processes like fracking, mining or cement manufacturing. The move came after years of public comment and hearings, and reflected emerging science about the dangers posed by even low levels of dust. OSHA predicted the rule would save 700 lives annually and prevent 1,600 new cases of silicosis, an incurable, life-threatening disease.

The proposal stirred fierce opposition from an array of industries, which argued that the costs of reducing silica levels far outweighed the potential benefits. When OSHA pushed ahead, the lobbyists took their arguments to the Office of Information and Regulatory Affairs, a division of the Office of Management and Budget. Few people have ever heard of OIRA even though it is part of the White House and has broad authority to delay or suggest changes in any draft regulation.

OIRA’s deliberations on the silica rule began in February 2011, and lasted two and a half years. During that time, records show, its officials held nine meetings with lobbyists and lawyers for the affected industries, but sat down only once with unions and once with health advocates.

Last August, the office sent a revised version of the rule back to OSHA; the worker protection agency has yet to act.

Labor advocates noted that the lengthy delay appeased House Republicans and pushed a decision opposed by the U.S. Chamber of Commerce out of the 2012 presidential campaign. “During that delay thousands of workers were further exposed to silica,” said Peg Seminario, director of safety and health at the AFL-CIO. “People have gotten sicker and some will die because of the exposures that have continued to take place.”

What happened to the silica rule is no isolated example. A series of executive orders over the past three decades have given OIRA significant authority to reassess rules on every imaginable subject, from health care to the environment to transportation. The office shares early drafts of rules with the president’s top advisers as well as other Cabinet-level agencies that might object.

Although some on OIRA’s team have degrees in science and engineering, former officials say its leadership and staff are largely drawn from the realms of economics, law and public policy. Regardless, the office does not hesitate to rework agency rules that were years in the making and backed by peer-reviewed science. Often, OIRA officials make a proposed rule appear too costly by revising the calculation of benefits downward. As it did with the silica limits, the office can also prolong the process, holding regulations in limbo for months and sometimes years.

In an influential 2001 Harvard Law Review article, Elena Kagan, now a Supreme Court Justice, argued OIRA provides a crucial check on the actions of government bureaucrats. “From the beginning of the twentieth century onward,” she wrote, “many statutes authorizing agency action included open-ended grants of power, leaving to the relevant agency’s discretion major questions of public policy.” Since agency heads are appointed, this could lead to administrative inefficiencies and, potentially, abuses of power. OIRA’s review requires agencies to answer to the president – an elected official who, unlike agency administrators, is accountable to the people.

But in practice, OIRA operates largely in secret, exempt from most requests under the Freedom of Information Act. It routinely declines to release the changes it has proposed, the evidence it has relied upon to make them, or the identities and affiliations of White House advisers and other agencies’ staff it has consulted. OIRA doesn’t even disclose the names and credentials of its employees other than its two most senior officials. (Repeated requests to the office for the backgrounds of its employees drew no response.)

According to a study by the Center for Progressive Reform, a nonprofit research and educational organization critical of the office, 84 percent of the EPA’s proposed rules from 2001 to 2011 featured changes suggested by OIRA as did 65 percent of other agencies’ regulations. Officially, OIRA’s “edits” are suggestions but they carry the weight of the White House and are typically accepted by the agency proposing the rule.

Among the rules OIRA has recently reshaped is a Federal Aviation Administration requirement on pilot rest. During its review, representatives of FedEx, UPS and other air-freight companies told OIRA that the dollar value of the pilots and aircraft that would be lost in fatigue-linked crashes would be far outweighed by the higher labor costs to the industry. The office successfully persuaded the FAA to exempt cargo pilots from the rule. (The regulation, protecting only passenger pilots, took effect this year.)

But the sphere in which OIRA’s involvement has been most pronounced is environmental rules. At OIRA’s prodding, the EPA removed manganese from a list of hazardous wastes and exempted certain types of engines, including motorcycles and snowmobiles, from a rule limiting emissions.

In 2008, an OIRA review by the Bush administration deleted a provision intended to protect plant life from the effects of ozone, a key component of smog. The EPA had proposed a sharp reduction in the permissible levels of ozone to protect forests and vegetation, which naturally remove carbon from the atmosphere. According to an investigation by the House Committee on Oversight and Government Reform, the White House summarily overturned the unanimous recommendation of the EPA’s Clean Air Scientific Advisory Committee and an array of expert testimony.

“I don’t think OIRA has been shy about meddling in any aspect of the EPA’s work,” said Lisa Heinzerling, senior climate-policy counsel at the EPA in 2009 and the associate administrator of the office of policy in 2009 and 2010. “They really do a line-by-line edit – sometimes that involves changing what the regulations mean,” she said.

In 2013 the Administrative Conference, an independent federal agency that reviews government administrative processes, released a study of OIRA’s effect on the application and interpretation of science the agencies gather and analyze to write rules. In examining a group of air-quality regulations, the study found that most of OIRA’s suggestions involved substantive changes. The report concluded that in some instances, the office has proposed changes to the basic science underlying the rules. These included revising numbers in tables created by the EPA, altering technical discussions and recommending different standards altogether.

“OIRA review makes the science done by the agency a façade,” said Wendy Wagner, author of the study and the Joe A. Worsham Centennial Professor at the University of Texas Law School. “It gives the impression that rules are much more based on science than they end up being.”

The Rise of a Federal Power

Congress created OIRA in’80 to prevent federal agencies from demanding excessive amounts of data from public and private parties. President Reagan greatly expanded its powers, signing an executive order that gave the office the authority to review all federal rules. This was an important change, since most laws say the rules are to be written by the relevant Cabinet agency, not the president and his aides. At the time, Reagan’s move kicked up controversy – still alive today – about whether it was appropriate for the White House to have such a direct say in government rulemaking.

Since then, both Republican and Democratic presidents have signed executive orders enshrining OIRA’s pivotal role.

OIRA gets three passes at each rule it audits. First is the informal review, which takes place before a proposed rule is officially submitted. Informal review could include memos, phone calls, in-person conversations and the swapping of early drafts. This process unfolds in secret. Documents generated as part of the executive branch’s policy deliberations are exempt from the Freedom of Information Act.

The office then reviews a draft of the proposed rule and the final version.

Proponents of this process depict OIRA as a counselor, providing a neutral, fresh look at long, complex regulatory documents; double-checking cost-benefit analyses; and ensuring regulations are “consistent” with “the President’s priorities,” as a guiding executive order states. Proponents also point out that while OIRA’s chief and deputy are presidential appointees, its staff is career civil servants, which precludes the pushing of a political agenda.

Cass R. Sunstein, a prominent legal scholar who led OIRA from 2009 to 2012, rejects many criticisms of the office, namely that it lacks transparency and that its suggested changes and delays are politically motivated. Sunstein, now a law professor at Harvard, responded neither to ProPublica’s requests for an interview nor to written questions.

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