Regulatory fist-fight

A move to wrest control of US federal regulations from government agencies should be opposed.

In an executive order passed last month, the administration of President George W. Bush tweaked the terms of the relationship between government agencies and its own Office of Management and Budget. The changes are subtle and arcane, but significant nevertheless. The administration will now review supporting documents as well as the regulations themselves. Agencies will have to present some additional cost–benefit figures. And the official in charge of coordinating all this from the agency end must now be a presidential appointee. This person will initiate rule-making and be "involved at each stage of the regulatory process".

Because deliberations on regulation are open to public scrutiny only after an agency submits its plans to the president's budget office (the Freedom of Information Act does not apply to deliberative processes within agencies), they can be smothered at birth inside the agency by the presidential appointee, away from public scrutiny.

Administration officials have downplayed the significance of these changes and, according to the Congressional Research Service, most of these officials are already presidential appointees. But the move represents yet another incremental power shift. The Bush administration's approach has been to make small bureaucratic changes or insertions here and there that make it more laborious to pass regulations, and easier for industry and the president to have regulations shift in their preferred directions. The influence of well-considered scientific advice has been progressively weakened.

The influence of well-considered scientific advice has been progressively weakened.

Consider, for example, the Data Quality Act of 2001, which opened the door for industry to take issue with the data used to make regulatory decisions. In 2005, in a move opposed by scientists, the salt industry used it to challenge the findings of a federally funded study of sodium and blood pressure (see Nature 433, 671; 2005). Consider also two failed attempts, one in 2003 to control the peer review of science informing regulation, and one last year to bundle all regulations into a centralized risk-assessment process run by the budget office. US scientists have the National Academies to thank for fending these off (see Nature 442, 223–224; doi:10.1038/442223b 2006).

At a hearing last week of the House science committee, Sally Katzen, who ran the department dealing with regulation at President Bill Clinton's budget office, described the effect this way: "Each step has placed a thumb on the scales, and now we have a whole fist."

The fact that this hearing and another in the judiciary committee were held at all is good news. Democrats and Republicans alike should see these moves for what they are: attempts to influence regulations at agencies that have been given their missions by Congress. It is all of a piece with Bush's habit of signing laws with attached statements indicating which bits of the law he doesn't intend to follow.

Congresswoman Linda Sánchez (Democrat, California), chair of the Subcommittee on Commercial and Administrative Law in the judiciary committee, intends to ask the Office of Management and Budget for more information on how the new executive order is to be implemented in practice. But only time will tell whether its provisions have a large or small effect. It is difficult for Congress to overturn an executive order. They do so by passing a law that contradicts it, but this law could be vetoed by the president. It would be better if Congress, encouraged by scientists, were to make such a fuss that the administration backs off.

If no one protests, this order may well be followed by other such manoeuvres, each designed to make science a mere vestigial irritant to the otherwise smooth implementation of Bush's personal will. This would be a bad idea even if the president were a fan of precautionary regulation based on empirical science. But he isn't.

Article brought to you by: Nature

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