President Obama announced yesterday his selection of Howard Shelanski as the next Administrator of the Office of Information and Regulatory Affairs in the White House. OIRA, although not widely known, reviews the regulations that are adopted by nearly all federal agencies: everything from EPA rules to limit mercury pollution from power plants to TSA rules governing airport screening procedures. This will give Shelanski enormous power to shape the remainder of the Obama administration's regulatory agenda.
As a legal academic with stellar credentials, Shelanski follows a long pattern of presidents appointing relatively independent experts to the role of OIRA administration. Like Cass Sunstein, whom he replaces, Shelanski is a well-respected scholar who does not have strong ties to any particular interest group. This tradition of independence is extremely important, and it is a good sign that the president has chosen to continue it.
Shelanski also has a wealth of regulatory experience -- arguably more than any prior OIRA administrator. That perspective should help inform how he carries out his oversight function. Too often OIRA review has been seen, and indeed has functioned, as a check on regulatory activity, rather than a mechanism to improve regulation. This antiregulatory tradition at OIRA undermines its credibility as an honest broker in the regulatory process. To best forward OIRA's true mission of promoting sound, rational rules, the review process must avoid antiregulatory bias. There is good reason to hope that Shelanski's experience in the trenches has made him sensitive to the complexities and challenges faced by agencies, and that he will work to ensure that OIRA doesn't tilt against agency action.
There is a long list of high priority rules that are currently in the regulatory pipeline, and the ability to move these smoothly through the regulatory process will, in large measure, determine the success of President Obama's second term. While legislation is important, in a time of deep political polarization, there is only so much that the president can accomplish with a hostile Congress. Regulation, on the other hand, need not be passed by Congress, so the president has a great deal more freedom of motion.
For example, the president may not be able to force Congress to take climate change seriously, but EPA is developing rules to limit greenhouse gas emissions from power plants. By moving forward expeditiously with these rules, the President can make a major dent in greenhouse gas emissions without waiting for a foot-dragging Congress.
Even more profoundly, EPA has the authority under the Clean Air Act to set a comprehensive cap on greenhouse gas emissions. The Institute for Policy Integrity, which we direct, has petitioned EPA to do just that. A well designed cap that includes a refund mechanism to protect consumers is exactly the kind of cost-effective regulatory system that OIRA should promote.
Ultimately, no OIRA administrator is going to satisfy every interest group with business before federal agencies. Almost no matter what Shelanski does, progressive are likely to complain that OIRA is stifling important agency initiatives, while industry trade associations will argue that OIRA isn't doing enough to rein-in burdensome rules But this dynamic frees him to follow his own vision of what an evidence-based and intelligent regulatory system should look like.