Presidential mandate centralizes regulatory power, endangers citizens
NOTE: The following is one of a series of case studies produced by the Union of Concerned Scientists' Scientific Integrity Program between 2004 and 2010 to document the abuses highlighted in our 2004 report, Scientific Integrity in Policy Making.
The Bush administration is challenging our government's balance of power and endangering the health and safety of Americans by further centralizing control of governmental regulations in the Office of Information and Regulatory Affairs (OIRA), a small Executive Branch office. Regulations are responsible for keeping toxins out of our food and water, seatbelts and airbags in our cars, our workplaces safe, and countless other protections we take for granted.
The President's Executive Order (EO) 13422,1 issued Jan 18, 2007, injects political appointees into agency rule-making, cripples an agency's ability to issue helpful guidance to the public, and promotes free market concerns over the welfare of citizens.
Unbalancing the Branches
The federal agencies of the United States, such as the Environmental Protection Agency, Food and Drug Administration, and Occupational Safety and Health Administration, derive their authority to pass regulatory laws from acts passed in Congress. In its charter for a hearing investigating the new executive order, the House Committee on Science and Technology's Subcommittee on Investigations and Oversight explains "Congress obviously cannot pass a law, or amend statue, every time a new threat to air or health arises. Instead, Congress puts in place general purposes, general authority and a set of values that the agency should use in carrying out the law."2
EO 13422 modifies a previous order, Executive Order 12866,3 to distort this process by placing high level Executive Branch political appointees at the helm of the regulatory divisions of every agency. Agencies must now get approval from this regulatory policy officer (RPO) before beginning work on a new regulation. The RPO will serve as the gatekeeper of regulations; where the head of the federal agency used to decide what major regulations would be included in the agency's regulatory plan, the political appointee will now make these decisions. It is worthwhile to note that the heads of federal agencies require Senate confirmation, and are therefore accountable to Congress, where these political appointees are only accountable to the president.4
Delaying Agency Guidance
The Bush amendments also systematically add guidance documents to the OIRA review process which formerly only applied to regulations. Agencies issue guidance to address emergency or time-sensitive regulatory issues, to clarify regulations, and explain technical issues to regulated industries and to the public; guidance is not legally binding.5 Some examples of guidance include a thorough analysis of the hazards of toxic metals to humans and the environment,6 a guide to minimizing food safety hazards from microbes,7 and flood recovery guidance for the hurricane-ravaged Gulf Coast.8
Under EO 13422, the agencies now have to provide OIRA with advanced notice of any "significant" guidance documents, where significance is defined as having an annual effect of $100 million or more. The public-interest group Public Citizen has summarized the complicated new definitions and burdens placed on the agencies when issuing guidance9 but the overall effect allows OIRA to bottleneck guidance and to require "additional consultation ... before issuance of the significant guidance document."10 As the Subcommittee's hearing charter notes, "there is no time limit on how long OIRA may take in moving on these guidance proposals.11
The impact of the executive order on guidance is magnified by a companion document, the Office of Management and Budget's (OMB) final bulletin for "good guidance practices," issued Jan 25, 2007.12 The OMB is the parent agency of OIRA. This bulletin greatly expands the definition of guidance, allowing OIRA to designate almost anything as a guidance document, including online databases, presentations, advisories about unsafe products, etc. Should OIRA choose, EO 13422 and the good guidance bulletin give it the authority to gridlock the issuance of guidance from federal agencies.13
Economics Over Safety
Finally, EO 13422 elevates economic concerns over all others when considering new regulations. This is clearly demonstrated by this sample of the additions to the previous order:
|Executive Order 12866 (1993)||Executive Order 13422 (2007)|
|"Each agency shall identify"||"Each agency shall identify in writing"|
|"the problem that it intends to address (including, where applicable, the failures of private markets or public institutions that warrant new agency action)"||"the specific market failure (such as externalities, market power, lack of information) or other specific problem that it intends to address (including, where applicable, the failure of public institutions) that warrant new agency action"|
|"as well as assess the significance of that problem"||"as well as assess the significance of that problem, to enable assessment of whether any new regulation is warranted."|
Market failures are situations where free private markets fail to bring about results the public needs. David C. Vladeck, director of the Institute for Public Representation and associate professor of law at Georgetown University Law Center, observes "the 'market failure' super-mandate does not appear in statue. It is not in keeping with the decisional criteria that Congress has established, and it cannot be reconciled with the dominant thrust of the health and safety statutes, which are designed to prevent deaths and injuries by avoiding market failure, rather than waiting until it is too late and market failure is evident."14 For example, the man-made chemicals called chloroflorocarbons were predicted to degrade the ozone layer of our atmosphere to the point where it would not sufficiently block harmful ultraviolet light from reaching the Earth's surface; The United States acted to phase out before the expected high incidence of skin cancers and eye damage actually occurred.15
Congress is concerned about the growing power of OIRA and the effect of a market failure interpretation of regulatory policy. The oversight hearing charter notes that "there is permissive language allowing for other kinds of analysis. The core question will rest on how OIRA applies this language in practice."16
To gain some inkling as to how OIRA may apply the market failure criterion, consider its greatest champion: Susan Dudley, who was appointed by the president to be administrator of OIRA in April 2007 via recess appointment after she failed to gain Senate confirmation.17 Susan Dudley's nomination for this position was vigorously opposed by 100 public interest groups who stated "we know from Dudley's writings and past positions that she is deeply hostile to regulatory safeguards and that she brings a radical agenda to this obscure but incredibly powerful office."18 Dudley has opposed regulation of arsenic levels in drinking water, mandatory air bags in cars, and the public's right-to-know about industry produced toxins in communities.19
In addition to elevating market failures, EO 13422 requires agencies to produce an "estimate of the combined aggregate costs and benefits of all its regulations planned for that calendar year to assist with the identification of priorities."20 In its analysis of the impacts of EO 13422, the public interest organization OMB Watch says "the aggregation of costs and benefits is comparing apples to oranges" that may herald the return of "establishing a 'regulatory budget,' an idea long championed by conservatives but opposed in Congress."21 The report cites further problems with using cost-benefit analysis for regulations: the costs are typically derived from often-overstated industry estimates while the benefits of regulation, such as civil liberties, human health and safety, biodiversity, etc., are difficult if not impossible to price.22
EO 13422 went into effect in July 24, 2007, and its effects may remain unclear for some time after that. The order has great potential to further politicize the regulatory agencies in the federal government with its consolidation of regulatory power in OIRA and presidentially-appointed regulatory affairs officers at every agency. The shift to a greater focus on economic and market principles instead of protecting health, safety, and the environment could have dramatic consequences which may be paid in human lives or well-being. Executive orders cannot be easily challenged; the most likely way this order would be repealed or modified would be by subsequent executive order by a future president. Until then, EO 13422 could have a profound impact on the ability of the US regulatory system to protect American's health and safety.
Note: While this is not direct interference with science like the other examples included in this guide, the UCS Scientific Integrity Program feels that the application of this executive order to the science-based regulatory process, particularly the inclusion of more political appointees into the process, could significantly exacerbate the pattern of political interference documented herein.
1. Executive Order 13422. Further Amendment to Executive Order 12866 on Regulatory Planning and Review. Jan 18 2007. Accessed July 31, 2007.
2. House Committee on Science and Technology, Subcommittee on Investigations and Oversight. Hearing Charter: Amending Executive Order 12866: Good governance or regulatory usurpation? Feb 13, 2007. Accessed July 31, 2007.
3. Executive Order 12866. Regulatory Planning and Review. Oct 4, 1993. Accessed July 31, 2007.
4. Vladeck, David C. Testimony before the Committee on Science and Technology, Subcommittee on Investigations and Oversight. Feb 13, 2007. Accessed July 31, 2007.
5. OMB Watch. A failure to govern: Bush's attack on the regulatory process. March 2007.
6. EPA. Framework for metals risk assessment. March 8 2007. Accessed July 31, 2007.
7. FDA. Guide to minimize microbial food safety hazards of fresh-cut fruits and vegetables. March 2007. Accessed July 31, 2007.
8. FEMA. Flood recovery guidance posted online for southern parishes. April 25, 2006. Accessed July 31, 2007.
9. Public Citizen. Guidance: New definitions and burdens. Jan 2007.
10. EO 13422
11. Subcommittee on Investigations and Oversight, Hearing Charter
12. Office of Management and Budget. Final bulletin for agency good guidance practices. Jan 25, 2007. Accessed July 31, 2007.
13. OMB Watch. A failure to govern.
15. Environmental Protection Agency. Ozone Depletion webpage. Accessed July 30, 2007.
16. Subcommittee on Investigations and Oversight, Hearing Charter
17. White House. Personnel Announcment. April 4, 2007. Accessed July 31, 2007.
18. Citizens for Sensible Safeguards. Letter to senators regarding Susan Dudley's nomination to OIRA. Nov 3, 2006. 19. Citizens for Sensible Safeguards.
20. EO 13488.
21. OMB Watch. A failure to govern.
22. OMB Watch. A failure to govern.