OMB OFTEN NOT TRANSPARENT IN RULEMAKING PROCESS, FORMER EPA OFFICIAL SAYS

Tamar Hallerman
GHG Monitor
4/5/13

The former head of the Environmental Protection Agency’s policy office has accused the White House Office of Management and Budget of often breaking its own transparency pledges while vetting major federal rulemakings, sometimes stifling environmental regulations with little explanation and limiting public disclosure. Lisa Heinzerling, a former associate administrator of EPA’s Office of Policy who is now a law professor at Georgetown University, said in a recent article published on the Yale Journal on Regulation’s website that OMB frequently breaks with the pledges made in a 2011 executive order while vetting proposed rulemakings from federal agencies.

She said the office often fails to provide agencies with written explanations as to why certain proposed rulemakings have not passed OMB review, as required under the executive order, and that it frequently does not make major decision points or documents public. “The Obama administration follows almost none of these rules on transparency. The OMB does not explain in writing to agencies that items on their regulatory agenda do not fit with the President’s agenda. The OMB does not keep a publicly available log explaining when and by whom disputes between the OMB and the agencies were elevated,” Heinzerling said. Instead, “the OMB simply hangs onto the rules indefinitely, and they wither quietly on the vine,” she said.

EPA Disproportionately Affected by OMB Power?

Heinzerling argued that under the Obama Administration, particularly, the OMB Director at any given time holds significant power over agency heads given that the office reviews all “major” rules being promulgated with cost-benefit analyses. In a subsequent interview, Heinzerling said OMB’s policies disproportionately affect EPA because at any given time, the agency tends to have more pending rules that are being vetted by the White House than any other government agency. “This whole process was started really in the Reagan Administration in order to address what that administration thought was the overregulation of environmental problems. Environmental policy has always been a particular fixation of this process, and that remains true today,” she said.

OMB’s website says the EPA currently has the most pending actions currently under OMB review, with 22. “EPA rules deemed major by OMB are not issued without OMB’s imprimatur. Thus does the OMB director become the EPA Administrator’s boss,” Heinzerling said in the Yale article. “This result would be bad enough, given the tension between it and the legal structures governing environmental policy. But it turns out the OMB itself seems not to want to accept accountability for running U.S. environmental policy.”

Heinzerling: Follow Executive Order

Heinzerling underscored the “tight relationship” between the EPA Administrator and the OMB Director, as both of the Obama Administration’s nominees for those positions, Gina McCarthy and Sylvia Mathews Burwell, respectively, go through the Senate confirmation process in the coming weeks. She said that during the upcoming nomination hearings of McCarthy and Burwell, senators vetting the two nominees need to ask about the relationship between EPA and OMB, who is in charge of EPA’s regulatory program and on what basis decisions about environmental policy will be made, if confirmed.

Heinzerling recommended that OMB and federal agencies follow the transparency pledges the President signed in his executive order. She said OMB should provide written and public explanations when it rejects rulemakings and that it return them back quickly. “More substantial changes—such as loosening the OMB’s grip on the agencies, ceasing the OMB’s meddling with agencies’ scientific findings, relaxing the cost-benefit stranglehold on regulatory policy—would also be welcome. But to start, just following the rules laid out by the President himself would be nice,” Heinzerling said. “Changes like these would be modest; they would simply bring the OMB into line with the executive orders it purports to be following.”