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Richard L. Revesz and Michael A. Livermore

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Questionable Conclusions About Bias at White House Regulatory Review Office

Posted: 12/02/11 03:42 PM ET

The office in the White House that considers the costs and benefits of new regulations is being accused of bias in a recent report report by the Center for Progressive Reform (CPR). Concerned that the Obama administration is using its political compass to reduce public protections, the report lays blame at the feet of the somewhat obscure but extremely important Office of Information and Regulatory Affairs (OIRA).

The report takes issue with the number of changes this office makes to the rules it reviews. Before dealing with the specific complaints, we underscore that it is OIRA's job to address questions that are brought up in public comments or by other agencies. Sometimes these comments are justified and require a response. This is the review process at work, not proof of bad faith. If OIRA were simply to stamp each regulation "approved" without making adjustments, there would be no purpose to having the office at all.

First among the report's claims is that OIRA meetings with outside groups are dominated by industry representatives -- the implication being that these meetings are having undue effect on the quality of new rules.

The number of meetings OIRA takes is not a good proxy for influence mostly because the office's policy is to take meetings with any group that requests one. As we have pointed out in the past, there is an imbalance in participation, but part of the blame is borne by that portion of the advocacy community that throws up its hands rather than request a meeting for every one held with industry. Yet four of the top eight most frequent outside participants in OIRA meetings are environmental groups -- a sign that at least some NGOs have recognized that this is an important forum.

The CPR report acknowledges OIRA's "open door" policy. Indeed, this policy is pointed to as the root of the problem. Their preferred solution is for OIRA to shut its door and "stop meeting with outside parties" during review.

The report is correct that industry groups will likely always have more money to spend on attempting to influence OIRA. But that is a problem in our political process more generally, not OIRA in particular -- one that was first brought to prominence by Mancur Olson in his book The Logic of Collective Action almost 50 years ago. The root of the problem is that concentrated special interests will tend to have less trouble overcoming organizing barriers than diffuse public interests. This same problem applies to the administrative agencies whose work OIRA reviews, to Congress, and even to some extent to the courts.

This is a tricky problem, one that has proven resistant to easy solutions. But closing the doors to participation (the course recommended in the report) is not particularly attractive.

The other option offered in the report, OIRA playing a more "active role in balancing the participation" of different actors, is fine if it extends opportunities for public interest groups, but problematic if it locks out other stakeholders.

Rather than shutting out industry, which often does have a legitimate stake in these decisions, the typical government response is to encourage the public through transparency and by lowering the barriers to participation. There is more work to be done, but OIRA's course of conduct on these issues is entirely consistent with how the rest of the executive branch operates. Indeed, as the CPR report notes, OIRA is more transparent about its meetings than administrative agencies, which do not log meetings as extensively.

In our experience, nothing magical is happening in these meetings with OIRA. We've been to several, and they do not strike us as breeding ground for influence peddling. They are largely formal exercises, where issues that have been hashed out in public comments are raised again to the polite nodding of OIRA staff.

Of course, if one comes armed with hard data and well supported conclusions, one is more likely to have an impact. But that is why it is important for groups advocating for stronger protections to focus more of their efforts on influencing the process with rigorous analysis, rather than assuming it is a rigged game as the CPR's study implies.

One valid critique is the failure of OIRA to post their meeting lists quickly enough -- the most recent meeting posted online concerning an EPA rule is from May 2010. It would be better for the public to be able to know, in as close to real time as possible, who is meeting with office officials. But that circumstance is neither proof of nefarious behavior nor an undermining of the whole regulatory review enterprise.

Another problem with the report is the metric used to determine OIRA's impact. Basically, any case where some change has been made during the process of review is counted. But (as the authors acknowledge) this is far too broad a measure. Changes suggested by OIRA can be small-bore technical amendments in the text of the rule, they could be major policy changes, or anything in between. OIRA's suggestions can also be directed to the justification for the agency's decisions, strengthening the argument for the policy, rather than changing the policy itself.

The report does not distinguish among these different cases. Separating out the important changes from the minor changes would have been difficult and time consuming. The disclosure of the documents exchanged between OIRA and an agency during review is the agency's responsibility, meaning that there are different policies carried out in different ways. This lack of a uniform, harmonized system of disclosure is a problem that OIRA should consider addressing. Ultimately, because the report groups all types of changes under a single heading, its findings on the extent of OIRA's influence, including the claim that OIRA is playing a larger role under the President Obama than under the previous administration, is extremely suspect.

Another charge leveled by the CPR report is that there is too much delay in releasing rules. Yes, all government offices should stick to their deadlines. But here again, it is hard to tell what exactly is the cause of deadlines being missed. Where rules affect multiple agencies, OIRA may need to hammer out differences -- a time consuming process. The lead rule-making agency may need additional time to respond to comments raised in the process and sometimes this can be a worthy hold up. There is no evidence in the report that OIRA itself is the source of the delay in the process.

There are plenty of legitimate policy and political disagreements to have with this Administration. Of late, it has steered a moderate course by continuing to push for a set of environmental, public health, and safety protections in the face of intense partisan backlash, while backing down from some of the most controversial proposals. It certainly has not been as aggressive as it could be. But suggesting that OIRA is driving the train would be a mistake.

That said, those who advocate for stronger protections for our nation's environment, workers, and consumers can take many steps to ensure the regulatory review process is more fair, and that can have an important effect on the (often very important) margins of policy making. They can request more meetings with the office; they can do deeper research to make their case on rules they want to affect; they can request more transparency from the office. All of these are more effective than looking for a boogieman at OIRA to take the blame for the disappointment felt by some progressives with the policy choices of the current Administration.

 

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