OIRA Watch

We note that a number of groups are meeting with OMB on EPA’s NSPS standards, see this article from Inside Climate News.

Hopefully one of the meetings at OMB will include the Secretary of Energy. After all DOE has the most experience of any federal agency on the CCS technology. CRE issued a press release on this topic several months ago.

Significant points in the CRE press release include the point that if EPA were to adopt the “CRE Option” then the EPA rule would be nearly litigation proof and consequently the more significant rule dealing with existing sources would not be compromised.

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From: Reuters

WASHINGTON, May 22, 2015 /PRNewswire-USNewswire/ — Inside EPA reports that it is likely that CCS is not in the New Source Performance Standard (NSPS) rule sent by EPA to OMB for interagency review. In response to this information some stakeholder groups are rallying their supporters to meet with OMB to reverse the decision.

It should be noted that all parties interested in a viable climate change program cannot afford to have EPA reversed in court on a rule which is predicate to the issuance of subsequent climate change rules. The elimination of CCS from the rule will make it virtually litigation proof; litigants will be mining for fools gold.

Editor’s Note: For more information on the need of federal agencies to adhere to OMB’s Data Quality Act peer review requirements, please see here.

By Lawrence A. Kogan

 On March 30, 2015, electrical engineer and long-time IEEE member and patent holder, Ron Katznelson, filed an Information Quality Act Request for Correction (IQA/RFC) with the White House Office of Science and Technology Policy (WH/OSTP).  The IQA/RFC sought correction of the statistical data and other information contained in a 2013 White House Task Force on High-Tech Patent Issues report entitled, “Patent Assertion and U.S. Innovation.”  This report is otherwise known as the patent assertion entity (PAE) or “patent troll” report.

From: EP News Wire

By Caitlin Nordahl

Jim Tozzi from the Center for Regulatory Effectiveness (CRE) sent a letter to the Secretary of Energy today, addressing issues with the Environmental Protection Agency’s (EPA) planned regulations for new coal-fired plants.

The EPA’s rule seeks to require Carbon Capture and Storage (CCS) technology be adopted at new plants. Tozzi’s letter argues that requiring CCS adoption at this stage, when its effectiveness has not been adequately tested, would discourage its future use as the technology is furthered.

All,

The Department of Energy spends billions on the development emission control technologies. It is important that they participate actively in the formulation of EPA’s NSPS for new coal fired plants.

DOE participation in the rulemaking is virtually guaranteed if EPA were to conduct a peer review in accordance with the requirements of the Data Quality Act.

Failure to conduct such a peer review could result in the execution of the legal strategy contained herein which provides a method for challenging a proposed rule because of non-compliance with the peer review requirements specific to the Data Quality Act. The strategy is a result of a legal precedent established in the TRAC litigation.

In reference to a number of reader inquiries regarding  Tozzi v HHS   we offer the following:

Tozzi v HHS resulted in three key decisions:

(1)    The plaintiff need not demonstrate direct causation; instead they can suffer harm through indirect causation, and

(2)    The issuance of a standalone report can be a final agency action and thus judicially reviewable, and

(3)    An extremely strong statement on the deference to be accorded to agency interpretations of its own regulations.

 In recent testimony to the Senate Homeland Security and Governmental Affairs Subcommittee Dr. Graham, a former Director of OIRA, stated:

“I think people should understand that OIRA is a troubled agency”.  “It’s not doing well. And a lot of the talented people who have been there for many years have retired, they have not had an ability to replace them with good young talent.”

We encourage all of our readers to consider the actions they could  take to address the aforementioned problem identified by Dr. Graham. To that end CRE will be contacting some of its more influential followers to explore relevant opportunities.

Were OIRA to obtain additional staff we would recommend that they begin the review of independent agency regulations under their existing authorities as explained herein.

On March 9, 2015 in the Ninth Circuit in the case W. Harkonen v. USDOJ the Department of Justice announced that the DQA  provides  the public with the right to seek  relief from OMB if an agency denies a Request for Correction filed pursuant to the Data Quality Act; in this instance an agency allegedly discredited a person through the issuance of press release. The Department explained that the DQA is “policed” by OMB — not by the courts; DOJ went on to state that OMB has the right to “take action” if agencies are not living up to their DQA duties.

OIRA is under constant criticism for failure to disclose all of its discussions with agency officials during their review of a regulation.

Disclosure of such discussions would invite grandstanding not a substantive discussion of the issues.

Much to his credit, Administrator Shelanski made the following statement at a Congressional hearing:

“That executive order has been interpreted across all Administrations –Republic and Democrat—to embody the deliberative process exception of staff level communications and we do not disclose those to the public. It is to protect the integrity of process.”

The Center for Progressive Reform reports:

“Obama’s guy was not budging on this one.”