Keeping a Close Eye on the Tsar

A provincial Irish newspaper called the Skibbereen Eagle famously concluded an editorial on European politics by noting that it would be keeping a close eye on the Tsar of Russia.

There is nothing provincial about the accomplished Lisa Heinzerling, but she has nonetheless been keeping a close eye on President Obama's former regulatory Tsar, Cass Sunstein. Sunstein wrote an essay recently recounting his experiences as head of the Office of Information and Regulatory Affairs. Heinzerling has now posted an engaging and important response based on her time in the Environmental Protection Agency:

The Obama administration has continued and deepened a longstanding practice of White House control over rules developed by the Environmental Protection Agency (EPA), with cost-benefit analysis as the guiding framework. The Office of Information and Regulatory Affairs (OIRA) is the central player in this structure: it reviews, under a cost-benefit rubric, all agency rules that it deems “significant” under executive orders mandating this review. EPA rules deemed significant by OIRA are not issued without OIRA’s imprimatur.

As I explain in this article, OIRA’s actual practice in reviewing agency rules departs considerably from the structure created by the executive orders governing OIRA’s process of regulatory review. The distribution of decision-making authority is ad hoc and chaotic rather than predictable and ordered; the rules reviewed are mostly not economically significant but rather, in many cases, are merely of special interest to OIRA staffers; rules fail OIRA review for a variety of reasons, some extra-legal and some simply mysterious; there are no longer any meaningful deadlines for OIRA review; and OIRA does not follow – or allow agencies to follow – most of the transparency requirements of the relevant executive order.

Describing the OIRA process as it actually operates today goes a long way toward previewing the substantive problems with it. The process is utterly opaque. It rests on assertions of decision-making authority that are inconsistent with the statutes the agencies administer. The process diffuses power to such an extent – acceding, depending on the situation, to the views of other Cabinet officers, career staff in other agencies, White House economic offices, members of Congress, the White House Chief of Staff, OIRA career staff, and many more – that at the end of the day no one is accountable for the results it demands (or blocks, in the case of the many rules stalled at OIRA). And, through it all, environmental rules are especially hard hit, from the number of such rules reviewed to the scrutiny they receive to the changes they suffer in the course of the process.

My main project here is descriptive. Misunderstandings of the OIRA process abound. Too often these misunderstandings are perpetuated by, or not contradicted by, the very personnel who have been involved in the process. I hope that the descriptive account I provide here, aimed at correcting the misimpressions that have grown up around OIRA review, will help to renew the debate over the role of OIRA and the larger White House in agency rulemaking.

You can download "Inside EPA: A Former Insider's Reflections on the Relationship between the Obama EPA and the Obama White House" here.