Obama Office Alters More Federal Rules Than Bush
by ARI SHAPIRO for NPR
November 28, 2011
Tucked away in a corner of the White House’s Old Executive Office Building, an office that most people have never heard of affects millions of Americans’ lives. It’s the last hurdle that every proposed regulation must surmount before seeing the light of day. And a new study of this obscure part of the government suggests that President Obama is altering more of those regulations than President George W. Bush did.
Health and safety regulations are not born fully formed. They have to run a long marathon first. Once an agency devises a rule proposal, whether to regulate air pollution or food safety, scientists and lawyers study the impact and cost of the rule. Agencies gather public comments. After a process that may take years, the regulation goes through one last gantlet in a place called OIRA (pronounced “oh-EYE-ra”).
OIRA stands for the Office of Information and Regulatory Affairs. It’s part of the White House office that manages the entire federal budget. Michael Fitzpatrick has worked there for three years, in an office taller than it is wide. His window looks out over the White House’s West Wing.
“In all of our lives, we have others review our work and make sure we’re doing it as well as possible. And that’s the way I view OIRA’s role,” he said in an interview with NPR.
He compares his role to that of an editor — looking at every proposed rule and asking, “Are you achieving this regulatory objective in the smartest, most effective, most efficient way possible?”
A ‘Killing Ground’ For Protective Rules?
The outcome, according to a new study by the Center for Progressive Reform, is that the office “has served as a killing ground for protective rules.”
“We studied the records of 1,080 meetings that have been held at OIRA over the last 10 years,” said Rena Steinzor, CPR’s president. “And we found that OIRA has changed 84 percent of environmental regulations, and 65 percent of other agencies’ regulations, and the change rate is worse than it was under George W. Bush.”
In other words, her group argues, this president is watering down or undoing a greater percentage of proposed regulations than his predecessor did.
Fitzpatrick, who sits at the center of this debate, argues that his office is improving regulations, not gutting them.
“When you are dealing with the most complex questions of policy, it’s to be expected that there are going to be questions raised and insights gleaned that cause an agency to say, ‘You know what? We should make a change here or there. We can do this in an even better way.’ ”
While the rest of the public might not know about OIRA, lobbyists have the office on speed dial. Industry groups visit OIRA largely for one purpose: to reduce regulation. Steinzor’s analysis found that industry representatives outnumber public health and safety advocates by almost 4 to 1 at OIRA meetings.
Jim Tozzi helped create OIRA and worked on regulations under five presidents. He says the tilt toward industry is to be expected.
Regulations, he says, “increase the cost of industry. So they have more direct skin in the game.” In contrast, he says, environmental groups’ members “don’t have skin in the game, because they just say ‘they’ll cough their lungs out’ or something like that.”
Besides, Tozzi says, “If they meet with you more, it doesn’t mean they’re going to agree with you.” OIRA has an open-door policy of never turning down a meeting with anyone.
Despite these figures suggesting that the Obama White House is altering more regulations than Bush and meeting with industry far more than with public safety advocates, Republicans accuse President Obama of choking the economy with a glut of “job-killing regulations.” Some of that complaint has to do with health care and financial reform — two big laws that include a lot of regulations.
Striking A Balance
Obama always emphasizes the need to strike a balance, saying rules that don’t make sense should die, while others are important.
“I reject the argument that says for the economy to grow we have to roll back protections that ban hidden fees by credit card companies or rules that keep our kids from being exposed to mercury. Or laws that prevent the health care industry from short-changing patients,” he said in a September speech to Congress.
People who have spent their careers in this field are not surprised to learn that the Obama White House is changing more draft rules than the Bush White House did.
John Graham ran the regulatory oversight office under George W. Bush. In his experience, Republican presidents tend to put people who don’t like new rules in charge of agencies — so those agencies don’t send a lot of regulations to a Republican-led White House for review.
In fact, “we had to devise an entirely new device called the prompt letter,” Graham recalls. “It says, ‘You really ought to strengthen the food label by putting the trans-fat content of foods on the label.’ But I think what you’ll find in the Obama administration is that there are no shortages of ideas of new regulations to be adopted coming out of the agencies.”
While OIRA staffers try to evaluate those ideas based on the merits of each proposal, many people who’ve worked there in the past say sometimes raw politics comes into play.
Susan Dudley, who worked at OIRA in the Reagan administration and came back to run the office at the end of the George W. Bush administration, recalls a former office head telling her, “Sometimes you have to kiss a pig.” That is to say, “Sometimes politics wins the day.”
Therefore, the person who runs OIRA is tremendously important. If he or she has the president’s ear, OIRA can win arguments at the White House. Otherwise the office can easily be bulldozed by other senior advisers.
The man who runs OIRA today is a legal superstar named Cass Sunstein, who is close friends with President Obama. They taught at the University of Chicago Law School together. People say half-jokingly that Sunstein could have had any job in the federal government, and he chose to run OIRA.
Sunstein’s deputy, Mike Fitzpatrick, acknowledges that senior White House officials sometimes have their say. But he cautions that politics is not always a dirty word.
“I know that there have been times through all administrations of both parties that at the end of the day, in a particularly complex, tough situation, the president or his senior advisers have said, ‘You know what? I don’t want to do this right now.’ And frankly, that’s why we have national elections.”
Ultimately, one of OIRA’s main jobs is to put a dollar value on things that nobody wants to price. The office must ask how much money the country is willing to spend to save an endangered species, or what cost the country is willing to inflict on companies in order to provide veterans in wheelchairs access to restrooms. These are questions that nobody is comfortable asking. So perhaps it should be no surprise that few people are happy with OIRA’s answers.
The Office of Information and Regulatory Affairs (OIRA, pronounced “oh-eye-ruh”) is a Federal office established by Congress in the 1980 Paperwork Reduction Act. It is part of the Office of Management and Budget, which is an agency within the Executive Office of the President. It is staffed by both political appointees and career civil servants.
Under the Paperwork Reduction Act, OIRA reviews all collections of information by the Federal Government. OIRA also develops and oversees the implementation of government-wide policies in several areas, including information quality and statistical standards. In addition, OIRA reviews draft regulations under Executive Order 12866.
The Office of the Administrator was created by Congress as part of the establishment of OIRA in the Paperwork Reduction Act of 1980. The Administrator is nominated by the President and requires Senate confirmation. The current Administrator is Cass R. Sunstein.
Cass R. Sunstein
Before becoming Administrator, Cass R. Sunstein was the Felix Frankfurter Professor of Law at Harvard Law School. Mr. Sunstein graduated in 1975 from Harvard College and in 1978 from Harvard Law School magna cum laude. After graduation, he clerked for Justice Benjamin Kaplan of the Massachusetts Supreme Judicial Court and Justice Thurgood Marshall of the U.S. Supreme Court, and then he worked as an attorney-advisor in the Office of the Legal Counsel of the U.S. Department of Justice. He was a faculty member at the University of Chicago Law School from 1981 to 2008.
Mr. Sunstein has testified before congressional committees on many subjects, and he has been involved as an advisor in constitution-making and law reform activities in a number of nations. A specialist in administrative law, regulatory policy, and behavioral economics, Mr. Sunstein is author of many articles and a number of books, including After the Rights Revolution (1990), Risk and Reason (2002), Laws of Fear: Beyond the Precautionary Principle (2005), Worst-Case Scenarios (2007), and Nudge: Improving Decisions about Health, Wealth, and Happiness (with Richard H. Thaler, 2008).
Laws of Fear: Beyond the Precautionary Principle by Cass R. Sunstein
Laws of Fear
Beyond the Precautionary Principle
Series: The Seeley Lectures (No. 6)
Cass R. Sunstein
University of Chicago
What is the relationship between fear, danger, and the law? Cass Sunstein attacks the increasingly influential Precautionary Principle – the idea that regulators should take steps to protect against potential harms, even if causal chains are uncertain and even if we do not know that harms are likely to come to fruition. Focusing on such problems as global warming, terrorism, DDT, and genetic engineering, Professor Sunstein argues that the Precautionary Principle is incoherent. Risks exist on all sides of social situations, and precautionary steps create dangers of their own. Diverse cultures focus on very different risks, often because social influences and peer pressures accentuate some fears and reduce others. Instead of adopting the Precautionary Principle, Professor Sunstein argues for three steps: a narrow Anti-Catastrophe Principle, designed for the most serious risks; close attention to costs and benefits; and an approach called ‘libertarian paternalism’, designed to respect freedom of choice while also moving people in directions that will make their lives go better. He also shows how free societies can protect liberty amidst fears about terrorism and national security. Laws of Fear represents a major statement from one of the most influential political and legal theorists writing today.
Acknowledgements; Introduction; Part I. Problems: 1. Precautions and paralysis; 2. Behind the precautionary principle; 3. Worst case scenarios; 4. Fear as wildfire; Part II. Solutions: 5. Reconstructing the precautionary principle – and managing fear; 6. Costs and benefits; 7. Democracy, rights, and distribution; 8. Libertarian paternalism with Richard Thaler; 9. Fear and liberty; A concluding note: fear and folly; Index.
Taken from Cambridge University Press
It should be noted that the European Union adapted the Precautionary Principle when creating the legal framework for REACH.
European Union Policy REACH
The EU, acknowledging the absence of a strong chemicals policy in Europe, adopted the REACH Regulation (Registration, Evaluation, Authorisation and Restrictions of Chemicals) in 2006. Its core aim is to ensure a “high level of protection of human health and the environment”.
Until very recently, the level of attention given by policy makers to the chemicals issue was insufficient and irresponsible. It led to ‘test-tube environment’ where it was assumed human health and nature would be unaffected by chemical exposure.
Acknowledging the increasingly numerous chemicals-related diseases, decision makers decided to create legislation. However, for many years the frameworks remained poor with only some chemicals regulated and with no global approach.
THE PRECAUTIONARY PRINCIPLE
Acknowledging the flaws of the existing chemicals legislation (see the 1998 evaluation report of the Commission), the European Union decided to move to a single system based on the precautionary principle. In February 2001 the European Commission adopted a White paper for a future European Chemicals Policy.
The REACH Regulation was finally adopted on 18 December 2006, and entered into force in June 2007. It created the European Chemicals Agency (ECHA), an executive agency in charge of the REACH implementation. The most innovative aspect of the REACH Regulation is that it gives the industry a greater responsibility to manage the risks linked to chemicals.
Industries are now obliged to provide basic information on their chemical substances properties to the ECHA in order to be allowed to be marketed in the EU (the “no data – no market” principle). It constitutes an important progress as it puts the burden of proof on the producer/importer rather than on public authorities.
REACH also seeks to shed some light on the toxic ignorance problem. New provisions (Art 118, 119) will provide increased access to information about eventual hazards and presence of chemicals. The ECHA is responsible for providing an active dissemination policy, by setting up and maintaining online database(s) with information on chemicals to allow a proper dissemination of information on chemicals substances provided by industries to the public. But the Agency also has the ability to keep information confidential if a party requires it, as long as it considers the request “valid” (for instance if making publicly available the information could potentially be harmful for the commercial interest of the registrant).
Two years after entry into force, NGOs are increasingly concerned about ECHA’s stance regarding information dissemination (see NGOs joint position on REACH Dissemination of information on chemical substances).
Most importantly REACH sets up specific provisions in order to prevent or minimise the adverse effects on human health and the environment from substances of very high concern (SVHC).
SUBSTANCES OF VERY HIGH CONCERN
Because these substances are considered to be the worst of the worst, these will need to be regulated under the authorisation or restriction route.
A related and key aspect of REACH is the substitution principle. It means that when safer alternatives can be identified the extremely hazardous chemicals should be replaced by safer alternatives. However, substitution is still not mandatory for all SVHC.
So producers will still be allowed to use the worst of the worst chemicals if they can prove that the risks are “adequately controlled” despite safer alternatives being available. However, producers wanting to use SVHC will still have to pay fees to comply.
Although the European Commission identified in its White Paper of 2001 that 1,400 chemical substances were known SVHCs, so far only 30 substances are officially considered as such in early 2010. Those substances need to undergo a lengthy and complex procedure before they are officially subject to controls.
The first step is to have these substances being placed on the so called “candidate list” and to be finally included on the list of substances subject to authorisation (Annex XIV list) or Restrictions (Annex XVII list). Being placed on the “Candidate List” means that the substance is officially identified as SVHC, triggering notification obligations to the whole supply chain which the citizens can benefit from (consumer right to know).
The identification of those substances has to be done either by the Member States, competent authorities or by the European Commission who can task the ECHA. (For more information on authorisation procedure, see ECHA webpage).
Parallel to this official list SVHCs NGOs set up a project to establish the list of substances that meet the official “of very high concern” REACH criteria. With the active involvement of the EEB, the Sin List – Substitute it Now! project was launched in 2008.
The updated Sin List identifies 356 SVHCs that are harmful to human health and the environment (contrasting with the only 30 officially recognised SVHCs).