Rolling Back the Regs

Emissions limits on coal-fired power plants, endangered species protections that inhibit logging, and restrictions on chemicals in drinking water have all been thorns in the side of the Bush administration.

But an executive order released on Jan. 18 with little fanfare could give the White House-controlled Office of Management and Budget (OMB) much greater control over such agencies as the Environmental Protection Agency (EPA), Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA) and Centers for Disease Control and Prevention (CDC).

With the new Democratic majority in Congress, the Bush administration has less power to pass laws that weaken environmental protections, worker safety, public health standards and the like. Critics fear the White House will now carry out its political agenda by dictating how federal agencies can interpret and enforce policies.

The order could have devastating consequences for environmental protections, says Howard Learner, executive director of the Chicago-based Environmental Law and Policy Center.

“The Bush administration is now trying to do through administrative barriers and regulatory policies what it can’t do through Congress,” he says. ​“The administration has long been trying to change the Clean Air Act, forestry protections, and other environmental and natural resource statutes. The realignment of Congress clearly makes that more challenging. So they’re turning to administrative processes that gum up the works.”

(The OMB and the EPA did not respond to requests for interviews.)

A series of executive orders, the most recent being number 12866, have allowed the White House to review regulations before they are published in the Federal Register. The new order gives the OMB the expanded power to review ​“guidance documents” published by federal agencies.

Guidance documents are statements that explain how an existing regulation will be interpreted, implemented and enforced. In a worst-case scenario, the OMB review of guidance documents could take the nuts and bolts of interpretation and enforcement out of the hands of agency experts and turn it over to White House appointees with political agendas.

During a Feb. 13 House Science and Technology Committee hearing, Rep. Brad Miller (D-N.C.) said, ​“It is not good government when agency action is based on economic or political back room deals rather than environmental or public health consequences.”

The bulletin defines ​“significant guidance documents” meriting OMB oversight as those that, among other things, would result in ​“an annual effect of $100 million or more or adversely affect … a sector of the economy.” In other words, environmental or other regulations that would cost industry considerable amounts of money — like cleaning up archaic coal-fired plants — would be subject to extra administrative oversight.

The new executive order also raises the bar for what corporate activities warrant government regulation. It stresses ​“market failure” as the main standard for determining whether something should be regulated. A toxic chemical like mercury, for example, would only be subject to federal emissions limits if it is proven that market forces will not protect public health. This standard is particularly disturbing as it relates to adverse effects with long time delays, like climate change, the effects of which don’t show up for years.

The order also calls for detailed cost-benefit analyses to be used in considering government regulation. And it authorizes a policy officer, appointed by the administration, to oversee each agency as a liaison with the OMB.

“It creates a new layer as far as annual priority planning goes,” says Robert Shull, Public Citizen’s deputy director for auto safety and regulatory policy. “[The officers] will have their hands on everything internally at the agencies. It will lead to political priorities shaping what should be public policy.”

Watchdog groups Public Citizen and OMB Watch are particularly disturbed because these processes will likely be overseen by Susan Dudley, a hard-line anti-regulation ideologue. During her tenure at the industry-funded Mercatus Center at George Mason University, Dudley opposed safeguards against arsenic in drinking water and smog.

“I read this as an invitation for Dudley to go on the attack, handing her an axe to chop Congress off at the knees,” says Shull.

Critics fear the extra studies and proof required by the order could delay critical environmental, health and safety regulations from taking effect for years. Shull notes that guidance documents largely govern the implementation of the Superfund environmental clean-up program. The new regulations could cause massive delays in the already severely underfunded and bureaucratically mired program.

The OMB bulletin describes the executive order, which was published in the Jan. 23 Federal Register and takes effect 180 days later, as a way to increase government agencies’ transparency and accountability. It mandates that electronic versions of guidance documents be available to the public, and that agencies accept public comment on significant guidance documents. These are arguably positive developments, but it does not obligate them to take action based on public comments.

Far from increasing public participation in policy, critics say the executive order does just the opposite. ​“This,” says Learner, ​“is inside baseball in the extreme.”