Erecting Obstacles to Protecting Health, Safety and the Environment
In January 2007, President George W. Bush issued an Executive imposing a series of new and unprecedented steps making it harder for administrative agencies to adopt regulations protecting health, safety and the environment.
At the heart of Executive Order 13422 was an effort to tighten White House control of the regulatory process and to establish criteria for regulations that made it harder for agencies to enforce statutes that protect against a variety of health, safety and environmental hazards. In February 2007 testimony before U.S. House of Representatives’ Committee on Science and Technology Subcommittee on Investigations and Oversight, CPR Member Scholar David Vladeck highlighted the dangers of the Administration’s radical approach:
- The Executive Order Usurped Congressional Authority By Directing Agencies to Justify Regulatory Actions on the Basis of Market Failure. The “market failure” super-mandate appears nowhere in statute. It was not in keeping with the decisional criteria that Congress had established, and it could not 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.
- The Executive Order Unwisely Expanded OIRA’s Authority to Cover Guidance Documents. Whatever the wisdom of centralized OIRA review of binding agency rules, the same arguments do not extend to centralized review of non-binding agency guidance. Hundreds of guidance documents are issued each year, often in response to emergencies or other time-sensitive developments. Requiring agencies to stop dead in their tracks to justify the provision of guidance on “market failure” grounds could not be defended on policy grounds; nor could giving OIRA the authority to meddle in the substance of significant agency guidance.
- The Executive Order Resurrected the Discredited Concept of a Regulatory Budget. The order forbade any agency — even the so-called “independent” agencies — from commencing any rule-making unless the agency’s regulatory plan set forth, among other things, “the agency’s best estimate of the combined aggregated costs and benefits of all its regulations planned for that calendar year.” These estimates gave OIRA the ability to effectively cap the amount of compliance costs an agency could impose in a calendar year, a power OIRA had long coveted. Nothing in the statutes Congress has enacted gave OIRA the right to ration the protection to be provided to the American people through regulation.
- The Executive Order Further Politicized the Regulatory Process. Executive Order 13422 required each agency “to designate one of the agency’s Presidential Appointees” to serve as the agency’s regulatory policy officer. At the same time, the Order greatly expanded the duties of the policy officer, providing that, “[u]nless specifically authorized by the head of the agency, no rulemaking shall commence nor be included on the [agency’s annual regulatory] Plan without the approval” of the policy officer. Nothing in the Order suggested that the political appointee would also be subject to Senate confirmation -- a troubling omission. The statutes Congress enacts to delegate power to agencies designate the agency head — and not a subordinate — as the decision-maker. Congress does this to ensure that decisions are made by an official accountable to Congress as well as the President.
Efforts by Congress to thwart the Order during the Bush Administration failed. But on January 30, 2009, President Barack Obama issued a new Executive Order revoking 13422.