From: RegBlog

Lisa Heinzerling

In his revealing new book about his nearly four years as President Barack Obama’s “regulatory czar,” Harvard Law School professor Cass Sunstein describes a striking moment:  “After I had been in the job for a few years, a Cabinet member showed up at my office and told my chief of staff, ‘I work for Cass Sunstein.’  Of course that wasn’t true – but still.”

But still, indeed.  Sunstein’s book, Simpler: The Future of Government, makes clear just how much power the Administrator of the Office of Information and Regulatory Affairs (OIRA) wields in this administration.  As I have written elsewhere, Sunstein informs us that, as OIRA Administrator, he had the power to “say no to members of the president’s Cabinet;” to deposit “highly touted rules, beloved by regulators, onto the shit list;” to make sure that some rules “never saw the light of day;” to impose cost-benefit analysis “wherever the law allowed”; and to transform cost-benefit analysis from an analytical tool into a “rule of decision,” meaning that “[a]gencies could not go forward” if their rules flunked OIRA’s cost-benefit test.

As Sunstein’s statements attest, the person who leads OIRA is, in the rulemaking domain, effectively the boss of members of the President’s Cabinet.  The head of OIRA determines which rules go to OIRA, what changes the rules will undergo before issuance, and indeed whether some rules will be issued at all.  Rules that make OIRA’s “shit list,” to use Sunstein’s term, simply stay at OIRA indefinitely. Twenty-four of the 149 rules under review as of April 26, 2013, have been at OIRA since 2011.  Three rules have been there since 2010.  Three important rules on food safety, required by legislation signed into law by President Obama himself, have been trapped at OIRA for many months.  A whole group of energy efficiency rules has languished at OIRA for years.  None of these rules will see the light of day without OIRA’s say-so.

It is a matter of some importance, then, to know who is running OIRA now that Sunstein has left.

By law, the Administrator of OIRA must be nominated by the President and confirmed by the Senate.   Since last August, when Sunstein returned to Harvard, OIRA has lacked a confirmed administrator. For several months after Sunstein’s departure, Obama appointee Boris Bershteyn served as acting administrator of OIRA.  But because no one was nominated for the position within 210 days of Bershteyn beginning his service as acting administrator, the Federal Vacancies Reform Act of 1998 prevented him from serving any longer. Since mid-March, therefore, Dominic Mancini – a career economist at OIRA – has been leading OIRA.

One might imagine that a career civil servant operating out of an obscure White House office would give a great measure of deference to rules forwarded by the heads of agencies, who were nominated by the President and confirmed by the Senate.  But, it appears, one would be wrong.

During Mr. Mancini’s tenure so far as OIRA’s head, OIRA has continued to hold onto rules long past any reasonable period for OIRA review; all of the rules I mentioned above remain stuck at OIRA today.  Although review of these long-delayed rules did not begin under Mr. Mancini’s watch, every additional day of delay is a continuing assertion of power by Mr. Mancini over agency heads – often members of the President’s Cabinet – who have sent the rules to OIRA, and have kept them there rather than withdrawing them, because they would like to issue those rules.

OIRA has also, during Mr. Mancini’s tenure, continued to preside over numerous changes to the rules it reviews.  Of the 24 reviews completed during the past 30 days (as of April 26, 2013), only four passed through OIRA with no change.  OIRA’s failure to follow the governing executive orders’ requirements regarding transparency, which I have criticized elsewhere, makes it difficult to know exactly what happens to rules during OIRA’s review.  It does not appear, however, that OIRA has loosened its grip on the agencies since Dominic Mancini has been in charge.

One recently proposed rule, for example, bears all the hallmarks of a proposal deeply affected by OIRA review.  The Environmental Protection Agency (EPA) proposed rule on toxic water pollution from power plants contains a set of options – options 1, 2, 3, 3a, 3b, 4, 4a, 4b – so baroque that it is almost impossible to keep track of them all.  Several “options” aren’t even legal.  Manic proliferation of “preferred options” and forced contemplation of legally suspect, weaker standards are some of OIRA’s signature moves.  My strong suspicion is that when EPA posts the document showing changes made during OIRA review – watch this space for that document, which will likely be posted when EPA’s proposed rule is published in the Federal Register – it will show a major reworking (and, I suspect, weakening) of EPA’s proposal as a result of OIRA review.

It is strange indeed to imagine a career staffer at an obscure White House office calling the shots on U.S. regulatory policy and declining to issue (or insisting on changing) rules forwarded to him by the heads of executive agencies.  The situation becomes stranger still when one recalls the original theory behind OIRA review: to increase political accountability by lodging ultimate control over rules with the President.  But few rules go to the President himself; OIRA must act as the President’s proxy in most matters it reviews.  Has President Obama really given Dominic Mancini, a career economist brought to OIRA ten years ago, his proxy on regulatory matters?  Or is Mr. Mancini acting on instructions from others in the White House?  If so, who is giving those instructions?  Don’t we have a right to know?

The President’s nomination last week of Howard Shelanski to be the new administrator of OIRA, and the confirmation hearing that will ensue, provide an opportunity to get answers to these questions.

Lisa Heinzerling is Professor of Law at the Georgetown University Law Center and a member scholar of the Center for Progressive Reform.  She was Senior Climate Policy Counsel to EPA Administrator Lisa P. Jackson from January to July 2009, and Associate Administrator of the EPA Office of Policy from July 2009 to December 2010.