Office of Info & Reg Affairs OIRA

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BEEF UP OMB OIRA?

AN 2 25

Trump signed an executive order Tuesday that vastly expands his influence over the federal government. At the heart of the order is the unitary executive theory, a controversial idea that says the president has the sole authority over the Executive Branch. The order makes it so that Trump controls several independent agencies.

“The action is likely to face court challenges and test a once-fringe legal theory,” according to Politico. They later add: “many mainstream legal scholars still believe it is illegal.”

The theory has also come into question in the case of Trump's firings throughout the federal government, including watchdogs and the head of the Consumer Financial Protection Bureau.

The agencies affected by Tuesday’s executive order include the Federal Communications Commission, the Federal Trade Commission and the Securities and Exchange Commission, all of which were set up by Congress to act at least semi-independently.

Project 2025 architect Russell Vought, Trump’s budget chief, is a champion of the unitary executive theory. The executive order places him as supervisor to these agencies, saying he will “establish performance standards and management objectives.”

“The unitary executive theory has always been a dangerous idea given the risk of presidential overreach and abuse of power,” Christopher Wright Durocher, vice president of policy and program at the American Constitution Society, wrote earlier this month. “And Trump is practicing a unitary executive on steroids, brazenly stepping on Congress’s constitutional power and daring a House and Senate controlled by his party to stop him. Congress can and should reclaim its role, and as litigants file suits, the federal judiciary can also weigh in. Without pushback from the other two branches of government, however, there’s no telling how hulking Trump’s unitary executive may become.”

“The most controversial aspect of the UET is the president’s removal power,” according to the Legal Information Institute at Cornell Law School. The theory says that the president can remove subordinate appointees — multiple presidents have used this theory to remove executive officials who the previous president appointed.

The 2021 Supreme Court case Collins v. Yellen established that the president is able to remove agency officials who were appointed by Congress at will. This decision allowed President Joe Biden to remove Federal Housing Finance Agency Director Mark Calabria, a Trump appointee. He later fired Trump appointee Andrew Saul, who was Social Security commissioner.

“Democrats may have rejoiced at President Biden’s decision to remove Trump holdover Andrew Saul as the Commissioner of the Social Security Administration. But they should think twice about the long-term effects of claiming a constitutional power to fire a commissioner appointed to a six-year term without invoking the statutory provision allowing for-cause removal,” Syracuse University College of Law professor David M. Driesen wrote at the time.

“The unitary executive theory, which embraces presidential removal of agency heads for political reasons, provides a pathway to autocracy,” he wrote. He added: “A President with autocratic tendencies can use just about any government power to reward his friends and punish his enemies. President Trump showed this on numerous occasions.”

"This is where the debate is: at what point does the kind of power that Trump wants and the way he exercises his power cross over from a constitutional vision about presidential power to an a-constitutional vision," Bob Bauer, a law professor at New York University and former White House counsel under President Barack Obama told ABC News.

"He's going to do an enormous amount of damage that the courts can't in all cases readily remediate," he added. "By the time he's finished emptying out some of these agencies and in some cases closing them, putting all that back together again is going to be very challenging."

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Everywhere you turn in Trumpland, you’ll find a slew of Thomas’ former clerks in high places. They are serving in the White House counsel’s office (Greg Katsas, John Eisenberg, David Morrell); awaiting appointment to the federal judiciary (Allison H. Eid, David Stras); leading the departments of the Treasury (Heath P. Tarbert, Sigal Mandelker) and Transportation (Steven G. Bradbury); defending the travel ban in court (Jeffrey Wall); and heading the White House Office of Information and Regulatory Affairs (Neomi Rao). Thomas clerks are also working with dark money groups to execute Trump’s agenda (Carrie Severino) and boosting him in the far-right media (Laura Ingraham).

[Jeffrey Wall

Former Thomas clerk Jeffrey Wall is now Trump’s acting solicitor general. Department of Justice

In an era in which former clerks seem, on balance, to be drifting away from Washington jobs, a whole lot of members of the old Thomas crew are moving back home. It’s near impossible to count every former Supreme Court clerk who is now playing a role in the sprawling executive branch, but it’s easy to see that an enormous number of Thomas protégés are stepping into positions of immense power. Every expert we spoke to, among them the New Yorker’s Jeffrey Toobin, agreed the Trump administration has brought on a striking number of Thomas clerks.

To be sure, a number of clerks who trained under Antonin Scalia, Anthony Kennedy, and other conservative justices have taken jobs with the government. But Stephen Vladeck, who teaches law at the University of Texas and serves as a Supreme Court analyst for CNN, says it’s instructive to compare the career paths of clerks who worked for Thomas and those who served under Scalia. The latter, Vladeck says, have gravitated more toward the conservative establishment—institutions like law schools and legal foundations. The Thomas clerks, who have “a bit more of a libertarian or populist streak,” are a more logical fit for the key legal jobs serving the Trump White House. It is the Thomas alums that have risen to prominence in the past six months, and they are working zealously to put their mentor’s ideas into action.

Consider Wall, Trump’s acting solicitor general, who left his law firm, Sullivan & Cromwell, to join the administration. Wall is the attorney who, back in May, so adroitly argued the travel ban case before the lower federal appeals courts and aggressively litigated the case in pleadings this summer at the Supreme Court. It was Wall who insisted on the “presumption of regularity” in the litigation, cautioning the judges to focus on the long tradition of deference to executive authority—especially in the realm of national security—and to ignore Trump’s incendiary tweets and campaign statements.

Wall has said that the judges for whom he has clerked are still his “close friends.” Perhaps most significantly, at an event last year celebrating Thomas’ 25th anniversary on the court, Wall defended the justice’s singular relevance and influence, rejecting any criticism that Thomas hasn’t had a profound impact on the court as “pernicious and wrongheaded.” (He’s quite right about that; liberals consistently underestimate Thomas’ influence.) Describing his former boss as an “intellectual catalyst,” Wall said that Thomas “is content to sow ideas that result later in changes in the law.”

That’s precisely the influence we are now seeing at work across the federal government. In arguing the travel ban cases, Wall insisted that limiting Muslim immigrants’ access to the United States does not amount to unlawful animus, that the president must have near-total authority to control the nation’s borders, and that his decisions must not be second-guessed by the courts. These are classic Thomas principles, and the justice himself embraced them in a partial dissent when the court allowed only part of the ban to take effect.

Thomas’ influence can also be seen in the work of Neomi Rao,whom the Senate recently confirmed to lead the Office of Information and Regulatory Affairs. Until her appointment as Trump’s regulatory czar, Rao served as a professor at George Mason University’s law school—an institution that, at Rao’s urging, was recently renamed in honor of Antonin Scalia. Rao has devoted her academic career to criticizing the administrative state—the web of agencies and committees that promulgate federal regulations. Her attacks on the government sit at the intersection of two quintessential Thomas principles: an aversion to regulations (especially labor and environmental rules) and a hostility toward limits on executive authority.

[Neomi Rao

Former Thomas clerk Neomi Rao is set to lead the White House Office of Information and Regulatory Affairs. Screenshot via YouTube

Rao believes, for instance, that independent agencies are unconstitutional. These commissions—which include the Securities and Exchange Commission, the Consumer Financial Protection Bureau, the Federal Communications Commission, the Equal Employment Opportunity Commission, and the Federal Reserve—flourish in part because they are removed from political pressures. Rao would like to change that. She believes that since these agencies are part of the executive branch, the president must be empowered to fire and replace their leaders.

Thomas sees his clerks as trainees in a very specific ideological program.

It seems extremely likely that Rao has been placed in her perch at OIRA not only to bust traditional agency regulations but also to bring independent agency rules under her purview. While her office does not currently review rules by independent agencies, she has argued that it should. Thomas has strongly suggested that all agencies within the executive branch, independent or not, must ultimately be accountable to the president. If Rao gives herself veto power over these agencies’ rules, she will bring Thomas’ vision a step closer to the reality. In the process, she could nullify whatever vestiges of liberalism are still lingering from the Obama era. For example, the EEOC recently took the position that federal law protects gay employees, directly contradicting Trump’s Justice Department. If Rao’s view wins out, Trump could fire as many EEOC commissioners as he needs to in order to reverse the agency’s position. Thomas, who takes a dim view of nondiscrimination law and gay rights, would be doubly proud.

The justice must already be delighted at the work of his former clerk Allison Eid, whom Trump has nominated to the 10th U.S. Circuit Court of Appeals. Eid currently serves on the Colorado Supreme Court, where she established her conservative bona fides by dissenting from a ruling that prohibited the state from sending public funds to private religious schools. The court’s decision was compelled by the Colorado Constitution, which bars the government from spending “any public fund or moneys … to help support or sustain any school … controlled by any church or sectarian denomination.”But according to Eid, this constitutional bar on public funding of parochial schools was likely motivated by unconstitutional animus toward religion—even though its plain text indicates nothing more than a desire to observe the separation of church and state.

Eid’s dissent, which she wrote in 2015, maps neatly onto Thomas’ own concurrence in 2017’s Trinity Lutheran v. Comer. In Trinity, the court ruled that Missouri could not deny a grant to a Christian school solely on account of its “religious character.” (A day after the court decided Trinity, it vacated the Colorado Supreme Court’s decision on parochial schools, effectively vindicating Eid’s dissent.) Thomas asserted that the court had not gone far enough in Trinity: He wrote that the government may never “discriminate against religion” by refusing to subsidize houses of worship and sectarian programs. Thomas, like Eid, appears to believe that when a state declines to fund religious activity—even out of respect for the Establishment Clause—it engages in unconstitutional discrimination. When Eid is confirmed, he will gain a critical ally in his fight for ever-more entanglement between church and state. And she will be the first of many Trump picks who are as immutable in their views as their former bosses. This is a movement and a cause, not just constitutional theory.

[Allison H. Eid

Trump has nominated former Thomas clerk Allison H. Eid to the 10th Circuit. Joe Amon/The Denver Post via Getty Images]

Thomas, who has described his clerks as his “little family,” sees them as trainees in a very specific ideological program.He famously invites them to watch The Fountainhead at his home each yearand has taken them on annual trips to Gettysburg to reflect on what he views as the conservative lessons of the Civil War. He also tutors his clerks on his judicial philosophy, instilling in them a profound reverence for his own vision of the rule of law.

It’s no surprise that so many of Thomas’ clerks share a belief system with their former boss, and with each other. Thomas is known to be ideologically rigid when it comes to hiring (and in everything else). Prior to 2013, every clerk he’d brought on during his Supreme Court tenure had first served under an appellate-level judge who’d been appointed by a Republican president.* Even Scalia occasionally hired “counter-clerks,” liberal-leaning men and women who had clerked for Democratic appointees on lower courts. Thomas has expressed no interest in this kind of ideological diversity. (To his credit, he does value educational diversity, intentionally hiring clerks from lower-ranked schools. Compare that with Scalia, who was openly biased against schools outside the T14.)

[Trump’s reactionary view of conservatism is causing a schism at the Supreme Court.

Like all justices, Thomas tends to get his clerks from a handful of feeder judges. Thomas’ chief feeders are J. Michael Luttig and J. Harvie Wilkinson of the U.S. Court of Appeals for the 4th Circuit, Laurence Silberman and David Sentelle of the D.C. Circuit, Edith Jones of the 5th Circuit, and William Pryor of the 11th Circuit—all rock-ribbed conservatives except for Wilkinson, who has recently drifted to the center. By drawing from this pool, Thomas ensures he won’t hear many progressive counterpoints to his conservative instincts. And that’s OK with him. Thomas has said that picking clerks is like “selecting mates in a foxhole,”explaining: “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”

https://www.desmog.com/2021/07/09/exxon-tapes-american-petroleum-institutes-lobbying-oil-trains/

Senior ExxonMobil lobbyists were recently exposed by undercover reporting from UnEarthed, an investigative journalism project of Greenpeace, which captured footage of the employees explaining how the oil giant influences policy makers using trade associations like the American Petroleum Institute (API).

The undercover footage revealed Exxon lobbyists boasting about wins for the company under the Trump administration and admitting to continued efforts to sow doubt about climate change and undermine action to tackle the crisis.

The recordings also confirmed the findings of years of DeSmog research on API’s lobbying tactics. “Did we aggressively fight against some of the science? Yes. Did we hide our science? Absolutely not,” Keith McCoy, a senior director in ExxonMobil’s Washington, D.C. government affairs team, told the undercover reporter Lawrence Carter. “Did we join some of these ‘shadow groups’ to work against some of the early efforts? Yes, that’s true. But there’s nothing illegal about that. You know, we were looking out for our investments; we were looking out for our shareholders.”

These revelations exposed by UnEarthed and first published by Channel 4 News help shed light on API’s lobbying strategies, particularly when it comes to transporting oil by rail. The rise of fracking in 2009 created a transportation problem in U.S. regions like North Dakota’s Bakken Shale, which lacked sufficient pipelines and other infrastructure to move the sudden glut of oil. In response, the oil industry started ramping up transport of its products by train around 2012, but several high-profile fires and explosions of these oil trains also followed, starting in July 2013.

DeSmog’s coverage of the years-long process of creating new oil train regulations in the wake of 2013’s deadly Lac-Mégantic, Quebec, oil train disaster documented the tactics described by Exxon lobbyist Keith McCoy — and revealed just how effective the company is at watering down efforts by regulatory agencies to protect the public and environment. [twt pix]

after years of covering the regulatory process governing oil trains, one fact stood out: API was almost always leading the process. Even though the process was supposed to be about improving rail safety, the oil industry played the dominant role. Exxon representatives were rarely seen in the many public Congressional or regulatory agency hearings and did not take a public role in fighting the regulations. However, as DeSmog reported, Exxon was meeting in private with federal regulators and arguing against stronger regulations on oil trains.

Much of my book :{Bomb Trains: How Industry Greed and Regulatory Failure Put the Public at Risk:(style="box-sizing:border-box"):}: highlights how API successfully uses “The Hill” — i.e. Congress — to stop regulation and describes the central role the organization plays, as noted in this passage in which National Transportation Safety Board Chair Deborah Hersman asks API representative Lee Johnson when safer rail tank cars could be expected:

In Congressional hearings, at rail industry conferences, and in funding supposedly independent studies of the issue, it was always API dictating what happened on “The Hill.”

As revealed by UnEarthed, Exxon lobbyist McCoy spelled out how it works in the recently released recordings:

“So you start to build out a coalition of associations. Now, companies feed into that privately where we have meetings, but the public face of it are the associations: they go to the Hill, they have these conversations.”

Exxon was rarely mentioned in the oil-by-rail regulatory process even though API was omnipresent. However, as McCoy noted, Exxon is directing API. On the tapes, he described how it worked, saying, “And so the API staff person who worked on that issue, We’d say, you know, ‘Hey Tom, you need to go to The Hill and you need to have a conversation with the committee.’”

This is similar to what Scott Sheffield, CEO of U.S. oil company Pioneer Resources, said in 2020 when he told CNBCthat it was Exxon leading discussions on a possible industry bailout and that Exxon “controls the API.”

Exxon’s Slide from :{a 2014 presentation:(style="box-sizing:border-box"):}: to theOffice of Information and Regulatory Affairs Arguing Against Thicker Tank Shells for Oil Tank Cars

...

https://apps.publicintegrity.org/united-states-of-petroleum/century-of-influence/

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A CENTURY OF INFLUENCE

The unlikely partnership between Big Oil and the White House

How the industry stalled action on climate change from the inside and sold America on fossil fuels

Illustration by Robert Fresson

by Jie Jenny Zou

Chris Young, Rachel Leven contributed reporting

December 12, 2017

A version of this article was co-published with Guardian US.

When Rick Perry was interrupted by climate-change protesters during his address to the National Petroleum Council in late September, the energy secretary was ready with a retort.

“You want to talk about something that saves lives? It’s the access to energy around the globe,” Perry said, countering a woman worried about deadly hurricanes and a man whose hometown is being submerged by the rising Philippine Sea. “I am proud to be a part of this industry. I am proud to be an American."

It was an opportunity for the former Texas governor to champion an industry he’d long embraced by showing fealty to the petroleum council, an arcane federal advisory committee dominated by energy executives. Picking up on Perry’s message was Interior Secretary Ryan Zinke, who has pledged to fast-track drilling and open more areas to fossil-fuel development.

The two took turns reassuring the council’s nearly 200 members during a meeting at the opulent Hay-Adams hotel in Washington, D.C., that the White House would be a friend, not foe, to Big Oil. “We’re now in the business of being partners, rather than adversaries,” Zinke said. “If I were in the industry, I’d be pretty happy.”

It wasn’t the first time that global warming had been cast aside by the Energy Department’s petroleum council, successor to a wartime body created by President Harry Truman. In 1972, the council buried the industry’s own climate research with the help oftop executives at the American Petroleum Institute (API), a longtime ally that once shared a building with the council.

API has gone far beyond the lobbying typical of trade associations, helping spawn permanent substructures within the executive branch that ensure its voice is heard. These government entities, which include the petroleum council and an obscure but powerful White House office, have for decades worked in tandem with API to fortify the oil and gas industry, its critics say, often at the public’s expense.

Excerpt from a transcript of API’s 1959 “Energy and Man” symposium at Columbia University in New York. The Hagley Museum]

API’s history on climate issues goes back farther than most realize. As early as 1959, it grappled with global warming, hosting a conference where the looming, manmade catastrophe was discussed. As the environmental movement was blossoming, API — with the government’s support — was working behind the scenes to undermine it by distorting projections of regulatory costs. An enduring false narrative was constructed: the economy or the environment.

For nearly a century, API has enjoyed special access to the executive branch,furtively shaping policy from the inside. Now, under Donald Trump, the industry smells victory on multiple fronts with a White House that openly detests regulation as much as it does. Days before Trump’s inauguration, API President Jack Gerard heralded the “once-in-a-generation opportunity” to reshape energy policy.

Fifty-two environmental rules have since been overturned or are in the process of being rolled back. API has publicly supported at least 23 of these actions. In May, the institute also sent a 25-page wish list to the U.S. Environmental Protection Agency. Among the items it wants reconsidered: tougher standards for ozone — the main ingredient in smog — and regulation of methane, a greenhouse gas that is far more potent than carbon dioxide.

API officials did not respond to interview requests from the Center for Public Integrity. On its website, the institute says, "We negotiate with regulatory agencies, represent the industry in legal proceedings, participate in coalitions and work in partnership with other associations to achieve our members’ public policy goals."

Neomi Rao at a congressional hearing for her 2017 appointment to the Office of Information and Regulatory Affairs,a division of the White House Office of Management and Budget.

U.S. Senate]

‘Regulate the regulators’

“I asked my staff for a joke, but it’s still going through cost-benefit analysis,” Neomi Rao said from a podium in October, drawing hearty laughs from a mostly male crowd of lobbyists, lawyers and policy analysts at the Heritage Foundation — a libertarian think tank based in Washington.

It was a tongue-in-cheek nod to the little-known agency Rao has led since July — the Office of Information and Regulatory Affairs,which she called a “small but mighty” division of the White House Office of Management and Budget. Her staff of roughly 50 reviews the costs and benefits of all major federal rules, providing the stamp of approval needed to turn proposals into regulations — or spiking them.

“If you are a very pro-regulatory administration, then you are not going to appreciate the work that OIRA does,” Rao warned the audience, likening her office to a “roadblock” against burdensome policies that hurt the economy. “The pace and scope of deregulation that’s occurred is truly unprecedented, and we’re just getting started.”

“The pace and scope of deregulation that’s occurred is truly unprecedented, and we’re just getting started.”

Rao — a constitutional scholar who clerked for conservative Supreme Court Justice Clarence Thomas and often shared pizza with the late Antonin Scalia — has embraced her role as “regulatory czar,” pledging to surpass a Trump executive order to eliminate two existing regulations for each one created. Though she is an ardent supporter of leaner and more restrained government, she plans to staff up OIRA and broaden its powers.

How, exactly, she’ll do this is a mystery — much like the inner workings of OIRA itself.The agency has routinely come up short of basic transparency guidelines recommended by the Government Accountability Office, garnering a reputation on Capitol Hill as a black box that heavily edits or kills regulations with little explanation in Republican and Democratic administrations alike. Cass Sunstein, who led the office during the Obama administration, has since defended the practice of derailing particular rules by putting them on a “shit list.”

While OIRA has resisted public scrutiny, it has held its doors open for industry. Since April 2014, 35 of OIRA’s 712 meetings on proposed EPA regulations have been with API representatives — including a 2015 conference call with institute President Gerard over ozone. The institute, along with the American Chemistry Council and ExxonMobil, ranked among the top 10 groups that met with OIRA from 2001 to 2011. Such encounters carry weight: A 2015 study by University of Wisconsin-Madison researchers found the agency was more likely to edit rules when lobbied by industry than by public-interest groups. Rao’s office did not respond to requests for comment, but OIRA notes on its website that it will meet with “any party interested in discussing issues on a rule under review.”

The office’s bias toward industry can be traced to its founding. Though OIRA was created in 1980, its roots date to the EPA’s formation in 1970. As a counterweight, President Richard Nixon established the National Industrial Pollution Control Council, an advisory committee within the Commerce Department made up entirely of industry executives.

Frank N. Ikard, former API president]

“Virtually no major move is made in environmental policy without drawing on your advice and criticism,” Secretary of Commerce (and, later, Nixon campaign adviser and Watergate figure) Maurice Stans told the committee in 1971. Members regularly reviewed and commented on draft regulations before they were released to the public, weighing in on matters such as leaded gasoline and the Clean Air Act.

Stans took special interest in the pollution committee’s oil and gas subgroup led by Standard Oil Chairman J.K. Jamieson, who regularly invited API President Frank Ikard and API public-affairs executive P.M. Gammelgard to its meetings. Staff from the National Petroleum Council were also on hand. Together the men coordinated a public-relations effort emphasizing the enormous costs the oil industry claimed it was absorbing to improve the environment.

Excerpt from the National Petroleum Council’s 1971 summary report to the White House National Archives and Records Administration]

In February 1971, the pollution committee advised Nixon aides to prioritize costs. The White House budget office obliged that October by creating a new program called “Quality of Life Review,” which would assess major environmental, health and safety regulations. Tapped to lead the agency was bureaucrat Jim Tozzi, who had shown a passion for deregulation at the U.S. Army Corps of Engineers.

Jim Tozzi describes himself as the father of the Office of Information and Regulatory Affairs

Administrative Conference of the United States

“Quality of Life” became all about reining in the EPA, Tozzi explained during an interview with the Center for Public Integrity. Occupying a floor of the Executive Office Building next to the White House, his office quickly went to work on the EPA’s proposed Clean Air Act guidelines. “I was like a little despot,” Tozzi said. “Somebody needed to regulate the regulators.”

Under Jimmy Carter, the “Quality of Life” program became OIRA in 1980, with Tozzi as deputy administrator. In 1983, Tozzi left the agency to join a law firm headed by William Ruckelshaus — the EPA’s first administrator, a Nixon appointee and an early champion of cost-benefit analysis. Tozzi now runs the Center for Regulatory Effectiveness, a think tank he founded and staffed with former OIRA employees that assesses regulations.

Tozzi said his plan for policing the EPA — and every other federal agency — has survived nine consecutive administrations and looks bright under Rao. “The Trump administration,” he said admiringly, “has gotten the number of regulations going out to a trickle.”

‘Virtually indistinguishable’

As Nixon’s pollution control committee quietly lobbied on industry’s behalf, the National Petroleum Council was doing its part to paint Big Oil as a linchpin of the U.S. economy.

Council members had grudgingly agreed to an Interior Department request to assess the industry’s environmental track record and plans following a 1969 oil spill off Santa Barbara, California. The disaster sent an estimated three million gallons of crude gushing into the Pacific Ocean; television broadcasts showed shorelines littered with tarred birds and dolphins.

The 1969 Santa Barbara oil spill in California became a pivotal point in the environmental movement.]

But the petroleum council’s ensuing two-volume report in 1972 was anything but apologetic. Totaling more than 500 pages, it defiantly cast the Santa Barbara spill as an anomaly and urged the government to continue fostering oil and gas development. Echoing economic arguments made by Nixon’s pollution committee, the council’s report cautioned against regulation that would dampen industry’s bottom line.

Among the report’s authors were Union Oil President Fred Hartley, whose company was responsible for the spill, and Standard Oil Chairman Jamieson of Nixon’s cost-obsessed pollution committee.

Citing research by API, the report also played down climate change. “Carbon dioxide concentrations do appear to be increasing for reasons not well understood,” the council wrote, adding that scientists would have to wait until the year 2000 to determine “whether or not a serious problem exists.” Even if the gas were having an effect, controlling such a ubiquitous pollutant could “impose impossible administrative and enforcement burdens,” the report said.

But things weren’t as ambiguous as the council made them sound. API papers on atmospheric pollutants in 1968 and 1969 made it clear that rising carbon dioxide levels came from the burning of fossil fuels and that warming was inevitable. The 1968 paper warned that there could be “melting of the Antarctic ice cap, a rise in sea levels [and] warming of the oceans,” while the 1969 paper noted that carbon dioxide levels would rise “as our combustion economy continues to consume increasing amounts of fossil fuel.” Several authors of the petroleum council’s report likely knew this, given that they were top API officials – including President Ikard and public-affairs executive Gammelgard.

Excerpt from a 1969 API scientific study on atmospheric pollutants. API]

The council and API occupied the same K Street building in Washington during the 1940s. Ikard — so close to Nixon that the president wrote thank-you notes to Ikard’s wife for homemade fruitcake and get-well messages — maintained an office there. In 1972, Ikard traveled to Sweden at the White House’s behest to represent the United States at the United Nations Conference on the Human Environment — the first international meeting of its kind. There Ikard would have been in a position to spread the word about global warming. There is no documentation to suggest he did.

API’s research during the 1960s makes the case “compellingly that the science is really sound,” said Carroll Muffett, president of the Center for International Environmental Law, an advocacy group that tracked down the climate studies. Muffett claims the petroleum council’s report is proof that high-level API executives were aware of the grave threats of warming and worked to hide the revelations. Climate-change doubters followed suit, mischaracterizing API’s early research as evidence that warming was a hoax.

Digging through archives, Stanford University researcher Ben Franta found what he believes is API’s earliest public reckoning with climate change: a November 1959 conference it hosted at Columbia University where a renowned scientist posited the emerging threat before 300 “government officials, economists, historians, scientists and executives.”

Within years, API was feverishly commissioning air-pollution research that resulted in the 1968 and 1969 papers. “API had this long-running awareness of climate change and climate science, and in that history the message they were getting from scientists was that climate change was real,” said Franta, who is writing his dissertation on the trade group’s activities. “If they wanted to head off that threat, they were going to have to think about acting then."

API leaders have played key roles at the National Petroleum Council, a federal body chartered in 1946 whose reports claim to be nonpartisan and in the national interest. The council was founded during World War II as a quasi-government agency that aided the war effort. It later became an adviser to the Interior Department and is now attached to the Energy Department, which did not respond to requests for comment. Members of the privately funded council are prohibited from lobbying and self-dealing but a review of its secretive, 71-year history shows it has long carried water for industry, minimizing environmental concerns while promoting deeper and riskier drilling.

While the council insists it’s not a trade association, its structure is similar to API’s. Both are organized as nonprofit business leagues funded privately by annual member dues. Though the council has a spare staff of under a dozen, it took in more than $5 million in 2015 donations.

Executive Director Marshall Warfield Nichols, who began working for the council in 1971, received compensation topping $840,000 in 2015, records show. The same year, the council spent $325,000 on a contract with FTI Consulting, the same K Street firm retained by API to lobby for favorable trade policies and aggressively rebut negative press on the oil and gas industry.

When a Center for Public Integrity reporter visited the council’s office in August, staff members refused to discuss a federal law that requires the council to make the bulk of its records publicly available. It subsequently released transcripts of some of its annual public meetings but did so unevenly, with some transcripts incomplete or heavily edited in handwriting. Some were missing.

The council has refused to provide the Center with any of its subcommittee records, and declined to provide all documents prior to 1973 — including records underlying its 1972 environmental report. Executive director Nichols declined to be interviewed, writing in an email that “it is not our practice to comment in public on matters between the Secretary of Energy and the Council or its members.” Nichols, however, shared records denied the Center with three private researchers who authored a sponsored history of the council in 2004. One of the writers had been previously hired by API to author the trade group’s own history.

The council’s composition and views have been fodder for complaints from those outside of industry. Its leaders have been the biggest, loudest voices in oil; until February, former ExxonMobil CEO and current Secretary of State Rex Tillerson was council chairman. Halliburton CEO Dick Cheney led the group before he became vice president in 2001.

In 2000, Fred Krupp of the Environmental Defense Fund resigned from the council, taking issue with an oil-refining report that criticized an EPA plan to curb sulfur in diesel, citing high costs to industry. In a letter to then-Energy Secretary Bill Richardson, Krupp wrote that he disagreed with the council’s recommendation to “delay and weaken … programs that are necessary for cleaner, healthier air quality.”

Of the council’s 170 members at the time, only Krupp represented an environmental nonprofit. He encouraged Richardson to diversify the body’s membership to include public-health advocates and regulators. Otherwise, he wrote, its perspectives would continue to be “virtually indistinguishable from the views of the refining trade organizations.”

Peter Lehner, then with the Natural Resources Defense Council, resigned from the council’s advisory committee about seven years ago after just a few months as a member, writing that his “goals were fundamentally distinct from the members of the petroleum industry whose perspectives continue to dominate the [council].”

Things haven’t changed much since Krupp and Lehner left. Of 192 members on the council’s roster, 144 come from the oil and gas industry. Over its lifetime, the council claims, almost a third of its 2,800 recommendations have been “fully implemented.”

These recommendations — to open more of the Arctic to drilling, for example — stand a good chance of being embraced by the Trump administration. At the petroleum council’s meeting in September, energy secretary Perry put his audience at ease. “The government’s not going to be in your way,” he said.

https://www.ecowatch.com/trump-epa-2647067465.html

toxic 10 epa rollbacks ewg

From the beginning, the Trump administration has aggressively slashed environmental regulations. A New York Times analysis identified 100 environmental protections that have been reversed or are in the process of getting rolled back. The administration's record on chemical safety has been especially hazardous for the health of Americans, especially children.

One year into President Trump's term, EWG detailed how the Trump administration has stacked the Environmental Protection Agency with industry lawyers and lobbyists, undermined worker safety and cooked the books on chemical safety assessments. Midway through his second year, we reported how the EPA reversed a ban on a brain-damaging pesticide, delayed chemical bans and killed a rule to protect kids from toxic PCBs in schools. Last year, we reported that the EPA had rescinded safety rules at chemical plants, rubber-stamped untested new chemicals and silenced researchers.

As Trump's first term nears its end, things are even worse. Here are 10 more ways the Trump administration has continued to make life more toxic for Americans.

1. Failed to Aggressively Regulate Toxic ‘Forever Chemicals’

The toxic fluorinated chemicals known as PFAS contaminate more than 2,200 sites across the nation. Because they never break down in the environment, PFAS are often called "forever chemicals." They build up in our bodies and are linked to cancer, reproductive and developmental harms and reduced effectiveness of vaccines. Even though the EPA has known about the risks from PFAS chemicals since at least 1998, they remain virtually unregulated.

In February 2019, the EPA released a toothless PFAS "action plan" that lacked deadlines for action and failed to address the use of PFAS in everyday products, contamination from PFAS air emissions or disposal of PFAS waste, among other concerns. A year and a half later, key goals from the plan, including regulating PFAS under the Superfund law and setting drinking water standards, remain unfulfilled.

When Congress stepped in and sought to designate PFOA and PFOS – the two most notorious and well-studied PFAS – as "hazardous substances" and to set deadlines for agency action, Trump threatened a veto. Trump's EPA also weakened a rule designed to regulate PFAS in consumer products.

2. Allowed a Rocket Fuel Chemical to Stay in Drinking Water

Perchlorate is a component of rocket fuel that also frequently contaminates drinking water sources. Perchlorate can interfere with thyroid function, which can also harm childhood brain development.

Almost a decade ago, the EPA determined that these harms warranted regulation under the Safe Drinking Water Act. The agency then dragged its feet for years. In 2016, the Natural Resources Defense Council sued to force the EPA to finally set a legal limit for perchlorate in drinking water. In a court-approved consent decree, the EPA agreed to propose a standard by October 2018 and finalize it by 2019. However, the EPA sought extensions and failed to meet these deadlines.

The EPA finally proposed a drinking water standard in June 2019 but also suggested that it might not regulate perchlorate after all. A year later,the EPA withdrew its decision to regulate perchlorate in drinking water.

3. Allowed Scores of New Chemicals, Including New Toxic PFAS, Onto the Market Without Adequate Oversight

In 2016, Congress substantially changed the way new chemicals are approved under the Toxic Substances Control Act, or TSCA.

Under the old law, chemicals were frequently approved by default, often without any health and safety information. As a result, unsafe chemicals were allowed to be used for years or decades before the health and environmental hazards came to light. Inadequate oversight of new chemicals can also lead to regrettable substitution – when chemicals are finally found to be unsafe, they are often replaced by unstudied chemicals that may be just as or even more toxic.

The 2016 update was supposed to fix the new chemicals program by requiring the EPA to make an affirmative safety finding on new chemicals and restrict use if industry failed to provide sufficient safety data. Nonetheless, the Trump EPA has approved scores of new chemicals in a process that lacks transparency and contravenes the 2016 law.The EPA has also ignored known health concerns, limited its consideration of worker risks and denied requests for public files in the new chemicals program.

The EPA has also exploited loopholes in the new law to quickly approve new chemicals, including toxic PFAS. A recent investigation found that the EPA has been quietly approving new PFAS chemicals, through a provision known as the low volume exemption in the new chemicals program. As a result, the EPA is greenlighting new PFAS chemicals on an expedited basis, without public scrutiny. One PFAS, used in ski wax, was approved despite a finding that the chemical could "waterproof the lungs," resulting in severe health impacts.

Since the law was updated in 2016, the EPA has reviewed more than 3,000 new chemicals submissions. More than 1,000 of these chemicals have been approved through the low volume exemption, and since 2016, manufacturers have begun producing at least 900 new chemicals, many without adequate safety data. Environmental groups have sued the EPA over its failures to protect the public and the environment from risks from new chemicals.

4. Failed to Protect Workers From a Deadly Paint-Stripping Chemical

Methylene chloride is a highly toxic chemical used in paint strippers that is responsible for more than 60 deaths since 1980. In the final days of the Obama administration, the EPA proposed a ban on "methylene chloride for consumer and most types of commercial paint and coating removal."

After significant pressure from families who lost loved ones due to methylene chloride exposure, the Trump EPA eventually issued a final rule in 2019. However, the EPA narrowed the rule so that it would apply only to consumeruses of methylene chloride, not commercial uses. That means workers are not protected, even though a Center for Public Integrity investigation found that most deaths from methylene chloride take place at work.

A separate EPA evaluation of methylene chloride found that manufacturing, disposal and several other uses of methylene chloride pose no "unreasonable risk." Environmental groups have filed lawsuits challenging the rule and the recent evaluation.

5. Cooked the Books on the “Civil Action” Chemical

Trichloroethylene is a chemical solvent made infamous by the book and movie ." The EPA considers it to be a known carcinogen, and it is one of the primary contaminants that sickened scores of veterans who served at Camp Lejeune, in North Carolina.

As with methylene chloride, in the final days of the Obama administration, the EPA proposed banning three uses of TCE: spot cleaning, aerosol degreasing and vapor degreasing. In December 2017, the Trump EPA shelved these proposed bans, claiming that it would study those uses in a separate ongoing risk evaluation of TCE.

However, the EPA dramatically rewrote the accepted science on TCE in the draft risk evaluation released in February. As EWG warned in 2018, the solvents industry aggressively lobbied the EPA to ignore a key 2003 study finding that TCE causes heart deformities in developing fetuses. TCE's connection with fetal heart defects was an important basis for the Obama EPA's decision to ban three uses of TCE. An independent review of the EPA's science found that "prenatal exposure to TCE can cause human cardiac defects" and that the study "remains a valid choice" for assessing risk.

The lobbyists succeeded. The EPA's draft risk evaluation questioned the study's design and minimized its significance. An investigation by Reveal News compared the draft risk evaluation with a leaked earlier draft. It found that the earlier draft had relied extensively on the 2003 study and used it as a benchmark for the risk calculations. Reveal also reported that then-EPA chemicals safety chief Nancy Beck – "the scariest Trump appointee you've never heard of"

https://www.ewg.org/planet-trump/2017/05/scariest-trump-appointee-you-ve-never-heard

– ordered that the risk evaluation be rewritten to downplay the risks of TCE. With the EPA giving significantly less weight to risks from fetal heart deformities, it's unlikely the agency will finalize the proposed bans.

6. Pressured EPA Scientists to Drop Evaluations of Toxic Chemicals – Including Formaldehyde

The Trump EPA is undermining the work of independent scientists within the Integrated Risk Information System program, known as IRIS. The program's work is supposed to be impartial and non-political. Its scientific assessments are intended to support the work of other EPA program offices and regional offices. IRIS is a frequent target of chemical industry attacks because its independent safety assessments often don't align with industry objectives.

In 2018, the Trump EPA tried to defund the IRIS program. EPA leadership also pressured IRIS to drop critical health assessments. In March 2019, a Government Accountability Office report disclosed that EPA leadership directed agency offices to limit the number of chemicals they wanted IRIS to review, and cut in half the number of IRIS's ongoing or upcoming assessments.

One of the halted assessments was IRIS's decades-long review of formaldehyde, a widely used chemical and known human carcinogen. This is surprising because former EPA Administrator Scott Pruitt indicated to the Senate Environment and Public Works Committee in January 2018 that the report was complete and ready for release. However, answering questions for the record following a 2019 Senate hearing, EPA Administrator Andrew Wheeler said formaldehyde was "not a top priority."

Instead of releasing the IRIS study on formaldehyde to the public, the EPA has instead decided that the Office of Chemical Safety and Pollution Prevention – under the leadership of Nancy Beck – should conduct its own assessment of formaldehyde. As with TCE, this action will give the agency an opportunity to distort the science and minimize risks. Because these reviews take years, it will also significantly delay any EPA regulatory action on formaldehyde.

7. Rolled Back Clean Water Protections

ref

https://www.ewg.org/planet-trump/2017/05/scariest-trump-appointee-you-ve-never-heard

MAY 2,2017

The Trump administration just appointed a chemical industry bigwig to a high-level chemical safety position at the Environmental Protection Agency as Deputy Assistant Administrator of the Office of Chemical Safety and Pollution Prevention.

You read that right. Nancy Beck is coming to the EPA straight from the American Chemistry Council, the powerful lobby whose members include Dow Chemical, DuPont, Monsanto, ExxonMobil Chemical, Chevron Phillips Chemical and Bayer among others. Now she’ll be making decisions as the Deputy Assistant Administrator of the EPA department whose stated mission is to “protect you, your family, and the environment from potential risks from pesticides and toxic chemicals.”

Here’s three things to know about Nancy Beck:

She has helped craft the chemical industry’s political agenda for years.

Before being appointed to her new position, Beck worked for the ACC as senior director for regulatory science policy in the Division of Regulatory and Technical Affairs. In that position, she helped draft the industry’s positions on chemical legislation before Congress and key regulations at the EPA and other agencies—including the major chemical reform bill that passed last year. Just last month, she testified before a House committee and advocated for EPA to adopt ACC’s scientific approach to evaluating chemical safety.

In her new position at EPA she’ll oversee the agency’s decisions on chemical safety—decisions that will directly affect your health as well as the financial interests of ACC’s member companies.

A House committee once called her out for “very disturbing” attempts to undermine EPA science.

Before joining the ACC, Beck was one of a handful of White House scientists who reviewed EPA regulations for the Office of Budget and Management —a job she started under the Bush Administration in 2002. During her tenure, that office increasingly scrutinized EPA chemical safety evaluations, resulting in significant delays.

In 2009, a report by the House Science and Technology Committee called her out by name for her efforts to rewrite and at times undermine EPA’s assessments of toxic chemicals. Specifically, the report found a Beck comment on a proposed EPA evaluation of a group of flame retardants to be “very disturbing because it represents a substantive editorial change regarding how to characterize the science.”It went on to say that her proposed changes “appear to enhance uncertainty” and that “the whole point of the exercise was to delay.”

In other words, she used her position in the executive branch to water down EPA’s conclusions about chemical safety and unduly delay finalization of risk assessments. Now she’ll be overseeing how those conclusions get drafted at the agency.

She’s been a vocal critic of EPA’s chemical safety findings, despite her own “fundamentally flawed” approach to chemical safety.

Beck has been described as a “powerful critic” of EPA’sIntegrated Risk Information System, or IRIS program, which researches chemical toxicity. IRIS assessments have traditionally played a big role in informing the rules that EPA and state governments adopt to protect people from toxic chemicals. Beck has frequently criticized the program and its conclusions, especially when they suggest the need to reduce pollution.

When Beck was a scientist in the George W. Bush administration's Office of Information and Regulatory Affairs, she helped write a controversial draft guidance that would have revamped and undermined the way EPA and other agencies evaluate chemical safety. That guidance was eventually withdrawn and significantly scaled back after the National Academy of Sciences criticized her proposed approach as “fundamentally flawed.”

In her new post, Beck will be free to ignore IRIS findings and direct her office to make chemical safety decisions based on her preferred kinds of studies and scientific methods. She could also play a role in eliminating the IRIS chemical toxicity assessments altogether—something proposed by the Trump administration in a leaked memo.

no lnx

https://www.nytimes.com/:{2020/04/:(style="background-color:#ffff66;"):}:16/climate/epa-mercury-coal.html

E.P.A. Weakens Controls on Mercury

The agency is changing the way it calculates the benefits of mercury controls, a move that would effectively loosen the rules on other toxic pollutants.

By Lisa Friedman and Coral Davenport

April 16, 2020

WASHINGTON — The Trump administration on Thursday weakened regulations on the release of mercury and other toxic metals from oil and coal-fired power plants, another step toward rolling back health protections in the middle of a pandemic.

The new Environmental Protection Agencyrule does not eliminate restrictions on the release of mercury, a heavy metal linked to brain damage. Instead, it creates a new method of calculating the costs and benefits of curbing mercury pollution that environmental lawyers said would fundamentally undermine the legal underpinnings of controls on mercury and many other pollutants.

By reducing the positive health effects of regulations on paper and raising their economic costs, the new method could be used to justify loosening restrictions on any pollutant that the fossil fuel industry has deemed too costly to control.

“That is the big unstated goal,” said David Konisky, a professor of public and environmental affairs at Indiana University. “This is less about mercury than about potentially constraining or handcuffing future efforts by the E.P.A. to regulate air pollution.”

The proposed change is the latest in the Trump administration’s long-running effort to roll back environmental regulations and reduce regulatory burdens, particularly on the coal, oil and gas industries. Over the past three years the administration has weakened rules to cut planet-warming carbon dioxide emissions from coal-fired power plants, restrict coal companies from dumping debris in streams and claimed falsely that that President Trump has revived the dying coal industry.

Over the past few weeks as the nation struggled with the coronavirus, the administration has also rushed to loosen curbs on automobile tailpipe emissions, opted not to strengthen a regulation on industrial soot emissions and moved to drop the threat of punishment to companies that kill birds “incidentally.”

The deregulatory push appears designed to secure less restrictive rules quickly, in case Republicans lose control of Congress and the White House in November. A new government could move quickly under the Congressional Review Act to overturn any regulation or federal rule within 60 days of it being finalized — making any rule completed after late May or early June vulnerable.

The mercury rollback is a particular victory for Robert E. Murray,the former chief executive of Murray Energy Corporation and a top fund-raiser for Mr. Trump. Mr. Murray personally requested the rollback in a written “wish list” to top officials shortly after the president took office. The company has since declared bankruptcy and is undergoing a reorganization.

“Under this action, no more mercury will be emitted into the air than before,” Andrew R. Wheeler, the E.P.A. administrator said in announcing the rule.

Climate and Environment ›

[Keep Up on the Latest Climate News

Once nonexistent, campaign cash earmarked as "climate donations" is flowing to Joe Biden as a small but growing counterweight to the monied muscle of fossil fuels.

Environmental lawyers and public health leaders called the timing of the final mercury rule, as well as its substance, an attack on air quality.]

“What is most disconcerting to me is this administration’s lack of interest in science and, frankly, their lack of concern for our nation’s children,” said Aaron Bernstein, interim director of the Center for Climate, Health and the Global Environment at the Harvard T.H. Chan School of Public Health. “Mercury pollution in the United States damages our children’s brains before they even come into the world, and estimates are that that cost is in the billions of dollars.”

Patrick Parenteau, a professor at the Vermont Law School, noted that in virtually every environmental rollback, Mr. Trump’s E.P.A. has acknowledged in the fine print that enormous increases in health problems and deaths will occur because of increased pollution.

A plan to weaken carbon dioxide emissions at power plants, for example, predicted as many as 1,400 additional premature deaths a year. A draft analysis of the soot policy put forward this week showed that tightening the existing standard by 25 percent could save as many as 12,150 lives a year.

Two people close to the administration said the White House was concerned enough about the public perception of loosening environmental rules during the outbreak that it held the mercury plan for several weeks after it passed a review from the White House Office of Information and Regulatory Affairs. E.P.A. officials assured the White House that the agency was merely responding as required to a 2015 Supreme Court ruling that found it must justify the economic impact of the mercury standards.

The weakening of the mercury rule would be one of the most significant regulatory rollbacks engineered by the Trump administration. The existing federal regulation on mercury pollution, completed in 2012, is the most expensive clean air regulation ever written by the E.P.A.

When it published its draft cost-benefit changes last year, the Trump administration’s E.P.A. said the cost of cutting mercury from power plant emissions “dwarfs” the economic benefits and argued that the Obama rule could not be justified as “appropriate and necessary.”

The E.P.A.’s 2012 regulation was the first federal standard to require power plants to install pricey pollution controls to limit mercury emissions — at a cost to industry of $9.6 billion a year. The Obama administration justified that cost with some mathematical legerdemain of its own. The Obama E.P.A. tallied not just the benefits of reducing mercury but also “co-benefits” like reducing sulfur dioxide, fine particulate matter and other pollutants that were also curbed by the equipment.

In his announcement on Thursday, Mr. Wheeler called the Obama administration’s accounting of health benefits “dishonest.”

Driving down mercury emissions alone, the studies at the time found, would yield a $6 million annual benefit, a fraction of the cost of the controls. But by adding in co-benefits like projected gains in avoided heart disease, asthma attacks and other health problems, the total benefits reached $80 billion over five years. Overall, the Obama administration estimated that the rule would prevent 4,700 heart attacks, 130,000 asthma attacks and 11,000 premature deaths each year.

Under the Trump administration’s new rule, such co-benefits will no longer be calculated with cost, only direct benefits.

While coal producers urged Mr. Trump to roll back the rule, the vast majority of electric utility companies have agreed the cost-benefit changes may be of little help to them, because they have already spent the billions of dollars needed to come into compliance. Many of those companies urged the Trump administration to leave the mercury measure in place.

Coal plants subject to the rule “have already spent millions of dollars to install mercury equipment to reduce mercury emissions,” wrote Scott A. Weaver, the director of air quality services for American Electric Power, an Ohio-based electric utility company that operates power plants in 11 states, in a public comment on a draft of the rule.

“Rescinding the standards at this point will create new problems” Mr. Weaver wrote, noting that companies that have sought to recoup the cost of installing mercury control equipment through bills to customers may no longer legally be able to do so. That means the new rule could actually cost companies more money.

Yet in comments to the E.P.A, major coal companies and the United States Chamber of Commerce also supported changing the underlying cost-benefit analysis to prevent future rules that they might consider onerous.

Matthew Davis, a former E.P.A. scientist who worked with the agency’s office of children’s health protection to develop the original rule, said weakening the rule still represented a threat to children’s health.

“The reason we did this rule is because children and developing fetuses are harmed by mercury,” said Mr. Davis, who now works at the League of Conservation Voters.

Jeffrey R. Holmstead, an attorney for the electric utility industry who served in the E.P.A. under the second President George Bush, rejected the idea that the decision was a cynical calculation to set the stage for other regulatory rollbacks.

“It’s not as if the administration has been shy about rolling back other things,” Mr. Holmstead said, dismissing environmental concerns. “I don’t think there’s any impact whatsoever from this.”

In Congress, the Obama-era mercury rule has bipartisan support. Senator Thomas R. Carper of Delaware, the top Democrat on the Environment and Public Works committee, and Senator Lamar Alexander of Tennessee, the chairman of an energy and water appropriations subcommittee, wrote an opinion piece in USA Today in November urging the Trump administration to leave the regulation unchanged.

“Changing the rule after billions of dollars have already been spent means that utilities will have less certainty about federal regulations,” they wrote. “The gains we have made over the past decade to protect children and families from dangerous mercury pollution should not be lost.”

trump rao GMU

https://thehill.com/regulation/administration/327912-trump-nominates-regulatory-chief

Trump appointed a new regulatory czar Friday.

Neomi Rao, an associate law professor at George Mason University, was nominated to run the White House’s Office of Information and Regulatory Affairs (OIRA).

OIRA will play a central role in Trump’s regulatory reform agenda. This obscure agency, which is buried inside the White House’s Office of Management and Budget (OMB), reviews regulations from federal agencies and has the power to reject rules that do not fall in line with the president’s goals.

As the OIRA administrator, Rao will play a key role in overseeing Trump’s plan to eliminate 75 percent of federal regulations.

Rao, an expert in constitutional and administrative law, has split her career between the courtroom and the classroom.

Former OIRA Administrator Susan Dudley said Rao has a “sharp legal mind” who will be able to “manage the competing demands of regulatory policy.”

“Professor Neomi Rao is an excellent choice to lead OIRA,” said Dudley, who served at OIRA during the Bush administration, and now runs the George Washington University Regulatory Studies Center.

“Not only is she is a respected legal scholar focusing on administrative and constitutional law, but she has experience in all three branches of government,” Dudley said. “In addition to a sharp legal mind, she brings an openness to different perspectives and an ability to manage the competing demands of regulatory policy.”

omfg

Trump Admin ‘Waging a War on Children’ Through EPA Rollbacks

The White House removed references to climate change and its impacts on children from a U.S. Environmental Protection Agency (EPA) proposal rolling back Obama-era regulations on hydrofluorocarbons (HFCs), E&E reported Wednesday.

An earlier draft of the proposal from the EPA showed language that described how "children, the elderly and the poor ... are most vulnerable to climate-related health effects" and detailed specific impacts of climate change on children that wasdeleted during a White House Office of Information and Regulatory Affairs review.

"Every day we see more evidence that this administration is actively working against the health and safety of the most vulnerable Americans — our children," Ken Cook, president of the Environmental Working Group, said Wednesday in a statement. "Tragically, it's not an exaggeration to say that the Trump administration is waging a war on children."

The original proposal to roll back limits on household appliance use of HFCs, which are thousands of times more potent than carbon dioxide when released into the atmosphere, was introduced last month. The deleted language follows the agency's decision to put the director of its childrens' health office on a mysterious "administrative leave" that many speculate is an attempt to sideline the office's work entirely.

For a deeper dive:

E&E, The Hill, Pacific Standard, ThinkProgress

Children's health language deleted from climate rule

Maxine Joselow, E&E News reporter

Published: Tuesday, October 2, 2018

The White House scrubbed language about how climate change affects children's health from a draft EPA proposal on heat-trapping chemicals, new documents show.

PRUITT new version?

https://www.alternet.org/scott-pruitt-burying-his-radical-pro-polluter-agenda-under-oceans-boring-legalese

Despite being weighed down by increasingly ridiculous corruption scandals, EPA head Scott Pruitt has never slowed down in his efforts to cripple the actual work of the agency Donald Trump handed over to him to destroy. Last week, as most of the media focused on admittedly hilarious scandals regarding Pruitt using government resources to get nice mattresses, fancy lotions and gourmet meals, Pruitt quietly moved to start redefining how the EPA handles the cost-benefit calculations the agency uses to determine what kinds of regulations it imposes on polluting industries.

"Many have complained that the previous administration inflated the benefits and underestimated the costs of its regulations through questionable cost-benefit analysis," Pruitt said in a press release. This failed to note that Pruitt himself was one of the main complainers, during his repeated efforts to sue the EPA while serving as Oklahoma's attorney general.

The agency announced an advance notice of proposed rule-making on Thursday, which is the first step towards rewriting standards the agency has used to determine the value of new regulations for years. The advance notice is written in dry legalese, the sort of thing that doesn't play as well as a story about moisturizer-hunting. But hidden inside all that dense language is the prospect of seriously gutting the EPA's ability to do the work necessary to protect public health

"It’s clearly a precursor to scaling back the way EPA quantifies and monetizes the benefits of its rules and safeguards," John Walke, director of federal clean air, climate, and energy programs at the Natural Resources Defense Council, told Salon.

"How EPA weighs and calculates the costs and benefits of any particular action has significant regulatory implications," explained Melanie Benesh, the legislative attorney for Environmental Working Group. “To the extent that you’re changing that the way the agency has to do that, and if you’re increasing the burden on the agency to justify actions they’re taking to protect the environment and public health, that’s potentially very significant.”

While the concept of "cost-benefit" can be complex in its details, the general concept is simple enough: EPA weighs the costs of a regulation to the industry versus the health and environmental protective benefits to the public. The latter is generally measured in lives saved and reductions in negative effects from pollution, including emergency-room visits, missed work days and other such costs.

As such, the calculus really should be understood more as a question of industry costs vs. public costs,and Pruitt's evident interest in moving as much cost as possible from industry to the shoulders of the taxpayers.

"Those costs are going to occur one way or another," Walke said. "Either industry is going to get away with not cleaning up its own pollution and forcing those costs upon the public in the most hazardous and dangerous ways possible to human health, or the costs are going to be internalized by the company.”

As Oklahoma attorney general, Pruitt sued to block the**mercury**rule, arguing, in part, that these kinds of ancillary benefits should not count towards the benefit bottom line. He lost that challenge, as he typically did with these actions against the Obama-era EPA. Now he's trying to get his bogus legal challenge turned into an EPA regulation of its own.Currently, the EPA's definition of "benefits" includes not just the most direct benefits of a regulation, but also what are considered indirect or ancillary benefits. For instance, one recent regulation, which the advance notice directly cites, directly addressed measures to reduce mercury emissions from power plants. Since the devices that plants must install to reduce mercury emissions also reduce other forms of pollution that cause health problems and deaths, the EPA included those reductions in the benefits column as well when calculating the worth of the regulation.

Walke suspects Pruitt might have even grander plans for reducing what the EPA is allowed to consider a public health benefit, by making it difficult for EPA officials to include. what's called the "social cost of carbon" — i.e., the damage done by global warming to human health and wellbeing.

“Carbon pollution is a different sort of beast," Walke explained. "It’s not like particulate matter is causing direct lung harm when CO2 is emitted.”

Instead, EPA officials currently measure the benefits of carbon reduction through indirect methods. For instance, reducing carbon emissions by a certain amount is assumed to slow global warming, leading to fewer floods, droughts and other catastrophic weather events related to climate change. But industry apologists and conservative pundits have insisted that this sort of broad assessment of the damage of pollution is cheating and want the EPA to be stingier in what it considers a benefit, even if the so-called secondary effects of pollution and environmental degradation cause real damage to real people.

As Vivek Wadhwa and Mark Muro argued in the Washington Post in December 2016, "Far from being a prohibitive drag on economic growth, decarbonization, or making the way that we get energy less dependent on burning fossil fuels that release carbon emissions, has gone hand-in-hand with output growth in most of the United States, according to research by the Brookings Institution."What makes this entire situation even more distressing is that many experts believe the current cost-benefit analysis of the EPA, even under Obama, was already exaggerating the economic costs of regulation.

Other expert analyses show similar results. While there are certainly industry costs to environmental regulation, they are not merely offset by public health benefits. Its even true that regulation often leads to job creation and economic innovation that helps stimulate the economy.

By putting even more emphasis on direct industry costs and minimizing the agency's ability to look at the big picture, Benesh said, Pruitt is "taking an existing problem and making it worse."

"We hear a lot about the everyday things, like there’s a new scandal, but those will go away," she added. But these kinds of "fundamental shifts" in how the EPA does its work "could take years to undo, if they’re undone at all

OMG:

From 1985 to 1988, Gramm was head of the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA). In 2002, OIRA solicited public recommendations for regulatory reform. Mercatus made 44 recommendations.

http://www.sciencecorruption.com/ATN167/00244.html

:{The creation of the EOP Group lobbyfirm:

[In White House-speak EOP = Executive Office of the President]

Michael O'Bannon and Ernest Robson initially joined Tozzi's lobby shop (MBS), but they left in 1992. Later they joined with Joseph Hezir, David Gibbons and Assistant Secretary of Energy, Jan Mares, to open the EOP Group — the only lobby firm besides Tozzi's to specialize in lobbying the OMB.

Michael O'Bannon - from Dept of Interior and OIRA (joined Tozzi in MBS, then left to manage the EOP Group)
Ernest Robins - OIRA (joined Tozzi's MBS and then the EOP Group)
Joseph Hezir - OMB/OIRA (joined EOP Group)
David Gibbons - OIRA (joined EOP Group)
Jan Mares - Assistant Secretary of Energy, - (brought in later to front the EOP Group)
Jonathon Gledhill - OMB & OIRA (later joined EOP Group)

----

see CPR OMB crit:

CPR Sinden: really (also ?) about OIRA

Each year, the White House's Office of Management and Budget (OMB) issues a Report to Congress on the Costs and Benefits of Federal Regulation. This report purports to provide an overall accounting of the aggregate costs and benefits of federal regulations issued during the previous ten-year period. While OMB always finds that, in the aggregate, the benefits of federal regulations far outweigh their costs, behind this seemingly sunny assessment is a biased and ideologically driven attempt to discredit and dismantle important environmental health and safety protections. In attaching precise numbers to the costs and benefits of regulations, the OMB reports create a false impression that such values can be meaningfully measured in monetary terms and that cost-benefit analysis can be used to scientifically assess the efficacy and desirability of particular regulations. This sets the stage for the creation of OMB's regulatory "hit list" - an industry wish-list of federal regulations targeted for elimination or reform in the guise of promoting neutral-sounding principles like "economic efficiency."

OMB's 2005 report, for example, pegs the aggregate costs of federal regulations issued during the previous ten years at $34.8 to $39.4 billion and the aggregate benefits at $68.1 to $259.6 billion. Lest we too hastily conclude that federal regulation offers a good bargain, however, the report immediately cautions that "[a] substantial portion of both benefits and costs is attributable to a handful of Environmental Protection Agency clean air rules that reduce public exposure to fine particulate matter." Thus, when it comes to individual rules outside the EPA's regulation of fine particulate matter, OMB's accounting shows many of these provisions delivering far fewer dollars in benefits than they impose in costs. Often these disparate numbers simply reflect the fact that the benefits of regulation - things like health, safety, clean air and water, or functioning ecosystems - are far more difficult to measure in monetary terms than are the costs. The OMB reports, however, suggest that such regulations are "economically inefficient" and therefore undesirable.

Indeed, in several of its most recent reports, OMB has compiled a "hit list" of purportedly inefficient regulations that, in OMB's view, should be considered for elimination or modification. While OMB has never explained why particular rules were targeted for this list, contemporaneous press accounts indicated that the "hit list" process was initiated through a series of meetings with industry lobbyists convened at the behest of OMB. The purpose of these meetings was to identify and rank regulations that business groups found "overly burdensome."

In 2001, for example - the first year that OMB compiled the "hit list" - it received nominations covering 71 federal regulations. Forty-four of these nominations were submitted by the Mercatus Center at George Mason University, a conservative think tank funded by many of the same industries that are directly regulated by the targeted rules. Of the 71 submissions, OMB ranked 23 as "high priority" on the basis of brief, skeletal statements (often no more than a page) submitted by Mercatus and other industry groups. Thirteen of the 23 rules on the "hit list" were environmental regulations, including such important promulgations as the Forest Service's roadless area conservation rule and EPA's rule strengthening the standard for arsenic in drinking water. EPA's rule regulating water pollution from Concentrated Animal Feeding Operations (CAFOs) also made it onto the list, just one month after representatives of the agriculture industry met with top-level OMB officials. Despite repeated requests from the Center for Progressive Reform and OMB Watch, however, OMB has never disclosed the criteria by which it selects rules for inclusion on the "hit list."

...

The problem is that, while cost-benefit analysis purports to be neutral, its methodologies systematically under-value health, safety and environmental protection. [See CPR Perspective on Cost-benefit Analysis, "Pricing the Priceless: Cost-Benefit Analysis of Health, Safety, and Environmental Protection."] The benefits that we derive from regulation - particularly environmental regulation - are usually intangible and not amenable to measurement in monetary terms. Things like human life, clean air and water, pristine wilderness, or the survival of an endangered species simply cannot be measured in dollars.

http://en.:{**wikipedia.**:(style="background-color:#ffff66;"):}:org/wiki/Office_of_Information_and_Regulatory_Affairs

The Office of Information and Regulatory Affairs (OIRA /:{oʊ:(style="border-bottom-width:1px;border-bottom-style:dotted"):}::{ˈ:(style="border-bottom-width:1px;border-bottom-style:dotted"):}::{aɪər:(style="border-bottom-width:1px;border-bottom-style:dotted"):}::{ə:(style="border-bottom-width:1px;border-bottom-style:dotted"):}:/ *oh-**:{:{eye:(style="text-transform:lowercase"):}::(style="font-variant:small-caps"):}:**-rə*) is a United States Government officeestablished in 1980within the Office of Management and Budget (OMB), an agency in the Executive Office of the President.The OIRA oversees the implementation of government-wide policies and reviews draft regulations.

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Tasks:{:(style="margin-right:0px;margin-left:0px"):}:[edit:{]}:

OIRA reviews requests it receives from federal agencies to collect information from the public. It develops and oversees the implementation of government-wide policies in the areas of information technology, information policy, privacy, and statistical policy.OIRA reviews draft regulations under **Executive Order 12866** and **Executive Order 13563**.Executive Order 12866 describes OIRA's role in the rulemaking process. In it, the President directs agencies, to follow certain principles in rulemaking, such as consideration of alternatives and analysis of impacts, both benefits and costs. As the Executive Order directs, OIRA reviews agency draft regulations before publication to ensure agency compliance with this Executive Order.

History

The Congress passed the Paperwork Reduction Act of 1980 (PL 96-511) and its successor, the Paperwork Reduction Act of 1995 that established OIRA in the Office of Management and Budget, an agency within the Executive Office of the President.

The executive order under which the group operates—EO 12,866—says OIRA should focus on "economically significant" rules. And yet for years, only about 100 of the 500 to 700 rules reviewed by OIRA annually have classified as "economically significant" Issuing Presidential regulatory principles and the centralized review of draft regulations, have been part of regulatory development for 30 years in one form or another.

It began with President Richard Nixon's "Quality of Life" program, and continued in the 1970s with President Gerald Ford's requirement in Executive Order 11821^[1] and 11949^[2] for agencies to prepare inflation/economic impact statements. It continued with President Jimmy Carter's Executive Order 12044 on "Improving Government Regulations."

The OMB review process became more formalized in 1981 with President Ronald Reagan's Executive Order 12291, which was in effect from 1981 to September 1993, the Reagan and George H. W. Bush Administrations and the first nine months of the Clintonadministration.

During the Reagan administration, the White House had reviewed 2,000 to 3,000 regulations per year.

In September 1993, President **Bill Clinton** issued Executive Order 12866 and the total dropped to between 500 and 700 annually.^[3]

^ ^

In January 2011, President BarackObama issued Executive Order 13565 to improve regulation and regulatory review.^[4] As amended by President George W. Bush's Executive Order 13422, signed in January 2007 was due to take effect on July 24, 2007^[5][6] the Executive Order covers federal agencies' "guidance documents", in addition to regulations.

[usda mars awol sci fined suppression on GMO?]

The Order's stated purpose was to ensure that agencies comply with the regulatory principles stated in Executive Order 12866 and that the President's policies are reflected in agency rules. It also specified procedures for the resolution of conflicts between or among agencies. In July 2007, controversy arose in the U.S. Congress over this order giving the OIRA additional powers.^[5] The House of Representatives voted to prohibit OIRA from spending federal money on Executive Order 13422.^[5][7]

^[pre ^2010 ^takeover?]

From 2001 to March 2006, OIRA was headed by **John D. Graham**, who departed to accept the deanship of the **Pardee RAND Graduate School**.The OIRA Administrator from September 2009 to August 21, 2012 was Cass Sunstein, who was succeeded by Acting Director Boris Bershteyn. On April 25, 2013, U.S. President Barack Obama nominated Howard A. Shelanski of Pennsylvania to the U.S. Senate for confirmation as the next permanent Director.^[8]

Criticism

A 2011 report from the Center on Progressive Reform stated that in 10 years, OIRA altered 84 percent of EPA rule submissions. The EPA's new rules on ozone pollution developed since September 2009, rolled out as tougher draft standards in January 2010, were repeatedly delayed.^[9]

In early 2011, after years of study, the Occupational Safety and Health Administration moved to reduce the permissible levels of silica dust wafted into the air by industrial processes like fracking, mining or cement manufacturing. The move came after years of public comment and hearings, and reflected emerging science about the dangers posed by even low levels of dust. OSHA predicted the rule would save 700 lives annually and prevent 1,600 new cases of silicosis, an incurable, life-threatening disease.

The proposal stirred fierce opposition from an array of industries, which argued that the costs of reducing silica levels far outweighed the potential benefits. When OSHA pushed ahead, the lobbyists took their arguments to the Office of Information and Regulatory Affairs, a division of the Office of Management and Budget. Few people have ever heard of OIRA even though it is part of the White House and has broad authority to delay or suggest changes in any draft regulation.

OIRA's deliberations on the silica rule began in February 2011, and lasted two and a half years. During that time, records show, its officials held nine meetings with lobbyists and lawyers for the affected industries, but sat down only once with unions and once with health advocates.

Last August, the office sent a revised version of the rule back to OSHA; the worker protection agency has yet to act.

Labor advocates noted that the lengthy delay appeased House Republicans and pushed a decision opposed by the U.S. Chamber of Commerce out of the 2012 presidential campaign. "During that delay thousands of workers were further exposed to silica,'' said Peg Seminario, director of safety and health at the AFL-CIO. "People have gotten sicker and some will die because of the exposures that have continued to take place."

What happened to the silica rule is no isolated example. A series of executive orders over the past three decades have given OIRA significant authority to reassess rules on every imaginable subject, from health care to the environment to transportation. The office shares early drafts of rules with the president's top advisers as well as other Cabinet-level agencies that might object.

Although some on OIRA's team have degrees in science and engineering, former officials say its leadership and staff are largely drawn from the realms of economics, law and public policy. Regardless, the office does not hesitate to rework agency rules that were years in the making and backed by peer-reviewed science. Often, OIRA officials make a proposed rule appear too costly by revising the calculation of benefits downward. As it did with the silica limits, the office can also prolong the process, holding regulations in limbo for months and sometimes years.

In an influential 2001 Harvard Law Review article, Elena Kagan, now a Supreme Court Justice, argued OIRA provides a crucial check on the actions of government bureaucrats. "From the beginning of the twentieth century onward," she wrote, "many statutes authorizing agency action included open-ended grants of power, leaving to the relevant agency's discretion major questions of public policy." Since agency heads are appointed, this could lead to administrative inefficiencies and, potentially, abuses of power. OIRA's review requires agencies to answer to the president — an elected official who, unlike agency administrators, is accountable to the people.

But in practice, OIRA operates largely in secret, exempt from most requests under the Freedom of Information Act. It routinely declines to release the changes it has proposed, the evidence it has relied upon to make them, or the identities and affiliations of White House advisers and other agencies' staff it has consulted. OIRA doesn't even disclose the names and credentials of its employees other than its two most senior officials. (Repeated requests to the office for the backgrounds of its employees drew no response.)

According to a study by the Center for Progressive Reform, a nonprofit research and educational organization critical of the office, 84 percent of the EPA's proposed rules from 2001 to 2011 featured changes suggested by OIRA as did 65 percent of other agencies' regulations. Officially, OIRA's "edits" are suggestions but they carry the weight of the White House and are typically accepted by the agency proposing the rule.

Among the rules OIRA has recently reshaped is a Federal Aviation Administration requirement on pilot rest. During its review, representatives of FedEx, UPS and other air-freight companies told OIRA that the dollar value of the pilots and aircraft that would be lost in fatigue-linked crashes would be far outweighed by the higher labor costs to the industry. The office successfully persuaded the FAA to exempt cargo pilots from the rule. (The regulation, protecting only passenger pilots, took effect this year.)

But the sphere in which OIRA's involvement has been most pronounced is environmental rules. At OIRA's prodding, the EPA removed manganese from a list of hazardous wastes and exempted certain types of engines, including motorcycles and snowmobiles, from a rule limiting emissions.

In 2008, an OIRA review by the Bush administration deleted a provision intended to protect plant life from the effects ofozone, a key component of smog. The EPA had proposed a sharp reduction in the permissible levels of ozone to protect forests and vegetation, which naturally remove carbon from the atmosphere. According to an investigation by the House Committee on Oversight and Government Reform, the White House summarily overturned the unanimous recommendation of the EPA's Clean Air Scientific Advisory Committee and an array of expert testimony.

"I don't think OIRA has been shy about meddling in any aspect of the EPA's work," said Lisa Heinzerling, senior climate-policy counsel at the EPA in 2009 and the associate administrator of the office of policy in 2009 and 2010. "They really do a line-by-line edit — sometimes that involves changing what the regulations mean,'' she said.

In 2013 the Administrative Conference, an independent federal agency that reviews government administrative processes, released a study of OIRA's effect on the application and interpretation of science the agencies gather and analyze to write rules. In examining a group of air-quality regulations, the study found that most of OIRA's suggestions involved substantive changes. The report concluded that in some instances, the office has proposed changes to the basic science underlying the rules. These included revising numbers in tables created by the EPA, altering technical discussions and recommending different standards altogether.

"OIRA review makes the science done by the agency a façade," said Wendy Wagner, author of the study and the Joe A. Worsham Centennial Professor at the University of Texas Law School. "It gives the impression that rules are much more based on science than they end up being."

The Rise of a Federal Power

Congress created OIRA in 1980 to prevent federal agencies from demanding excessive amounts of data from public and private parties. President Reagan greatly expanded its powers, signing an executive order that gave the office the authority to review all federal rules. This was an important change, since most laws say the rules are to be written by the relevant Cabinet agency, not the president and his aides. At the time, Reagan's move kicked up controversy — still alive today — about whether it was appropriate for the White House to have such a direct say in government rulemaking.

Since then, both Republican and Democratic presidents have signed executive orders enshrining OIRA's pivotal role.

OIRA gets three passes at each rule it audits. First is the informal review, which takes place before a proposed rule is officially submitted. Informal review could include memos, phone calls, in-person conversations and the swapping of early drafts. This process unfolds in secret. Documents generated as part of the executive branch's policy deliberations are exempt from the Freedom of Information Act.

The office then reviews a draft of the proposed rule and the final version.

Proponents of this process depict OIRA as a counselor, providing a neutral, fresh look at long, complex regulatory documents; double-checking cost-benefit analyses; and ensuring regulations are "consistent" with "the President's priorities," as a guiding executive order states. Proponents also point out that while OIRA's chief and deputy are presidential appointees, its staff is career civil servants, which precludes the pushing of a political agenda.

Cass R. Sunstein, a prominent legal scholar who led OIRA from 2009 to 2012, rejects many criticisms of the office, namely that it lacks transparency and that its suggested changes and delays are politically motivated. Sunstein, now a law professor at Harvard, responded neither to ProPublica's requests for an interview nor to written questions.

In a 2010 talk, Sunstein addressed criticism of the office's transparency, pointing to its "dashboard" web page, which features basic information on rules currently under review. In other venues, he has cited OIRA's posting of meeting logs as evidence of its openness. Neither the dashboard nor the logs disclose who has proposed changes in rules or what evidence they are relying upon.In a 2013 article, Sunstein said OIRA largely functions as an "aggregator" of information from the executive branch and the public on any given regulation. Sunstein acknowledged that OIRA plays a substantive role in a rule's economic aspects, but said it does not rethink scientific conclusions. "When scientific issues are engaged, there is no 'political interference with science' (in my experience),'' he wrote. "Scientific issues are explored as such by people who are competent to explore them."

Without question, OIRA review opens the door for a long line of people to influence federal regulations: from the President's chief of staff, to a Cabinet secretary, to a presidential adviser in an executive office such as the Domestic Policy Council, to a member of Congress, to lobbyists for regulated industries.

Coal Ash Controversy

One controversial rule currently under OIRA review would create controls on the handling of coal ash, the dross from coal-fired power plants. Coal ash contains a host of hazardous substances, including arsenic, lead and mercury, and is the country's most polluting waste — more than all oil refineries, petrochemical plants, paper mills and incinerators combined — as well as being one of the country's largest sources of waste overall. Questions about its handling burst into the news earlier this year after the toxic sludge spilled into the Dan River in North Carolina.

The rules for handling this waste, known as Effluent Limitations Guidelines, have not been changed since 1982, and many experts say they are weak. The EPA leaves most standards to the discretion of the states, many of which have done little to enforce and add protections. Essentially, most coal-fired power plants have been able to dump their ash indefinitely into unmonitored, open-air pits. Not surprisingly, the utility industry is resisting stronger controls to stave off costs of adopting new waste-handling methods and more technologically advanced water-treatment equipment.The ash is most often stored near power plants in artificial ponds from which nearby rivers, lakes and drinking water supplies can be contaminated — even if there is no catastrophic spill.

The EPA sent OIRA its proposed new rules in January 2013. The agency submitted five options from which it would choose the final rule. In its draft, the EPA indicated it would likely pick one of two options, which it listed as "preferred." Both set relatively tough standards on power companies.

In the weeks leading to OIRA's completed review of the coal ash limits, a number of utility industry lobbyists and lawyers met with the office. While OIRA makes public a list of attendees and documents given to the office's representatives at meetings, it does not disclose the substance of their discussions. Such conversations are not unusual; any member of the public can meet with OIRA to discuss a rule. But the office has become a standard stop on the lobbying circuit for industries facing tighter regulations.

A 2003 Government Accountability Office study found that "regulated parties," typically corporations or their lobbyists, frequently get what they want after meetings with OIRA. Sometimes, the language of the edited rule is similar to that proposed by the regulated parties themselves.

When the rule on coal ash effluent emerged from OIRA, three more options had been added, a diluting of the two options the EPA favored. OIRA's draft dropped the tougher of EPA's preferred rules and identified those new, less demanding options as favored.

The office also recast the EPA's scientific findings. The agency initially stated that using ponds for storing the most toxic form of coal ash, the emissions captured in the smoke stack's final filter, did "not represent the best available technology for controlling pollutants in almost all circumstances." Revisions made during OIRA review recommended eliminating this conclusion, giving no explanation why. Other changes included softening data, such as reducing coal-fired power plants' share of toxic pollutants discharged to surface water from "at least 60 percent" to "50-60 percent." The post-OIRA version also recommended reducing the projected benefits of the EPA's higher standards, which the agency did.

The EPA reached its findings for handling coal ash after almost 10 years of extensive data collection, modeling and analysis. This work required the knowledge of biologists, chemists, engineers and toxicologists working on a team that varied in size from about eight to around 30 people at various phases. The EPA lists the staff in its Office of Water responsible for the rule in the document itself, on the agency's website and in press releases.

It is difficult to know the qualifications of the people at OIRA who rewrote the EPA's draft rule. The only credentials disclosed by its website are those of the current administrator, Howard Shelanksi, who has a Ph.D. in economics, and his deputy, Andrei Greenawalt, a lawyer who was a policy adviser to the chief of staff from 2011 to 2013. ProPublica's request to the OMB for a list of OIRA staff went unanswered, as did repeated requests for an interview with Shelanski. OIRA also failed to respond to written questions about its lack of transparency.

Formaldehyde: A Case Study

Prompted by evidence that formaldehyde fumes were sickening Hurricane Katrina survivors living in FEMA trailers, Congress passed a law in 2010 calling for tighter limits on the chemical. Specifically, the legislation required controls on the use of the known carcinogen in compressed wood products commonly used in building materials. The EPA, the body designated to administer the law, submitted its proposed regulation to OIRA in May 2012.

Included in the rule was a set of public health outcomes that the EPA, using peer-reviewed work by the National Academy of Sciences, judged would improve with the regulation. The agency projected benefits ranging from $91 million to $278 million, mostly from reduced medical care and hospitalizations of children with asthma.

While the rule was at OIRA, industry representatives met five times with officials from the office. The United States is a major market for formaldehyde: In 2011 the American Chemistry Council estimated that U.S. companies sold more than $27.7 billion worth of formaldehyde-based building products. Some of the world's most powerful companies manufacture, sell and use formaldehyde, including Koch Industries, Exxon Mobil and Dow Chemical.

During OIRA's review, the scientific findings were challenged — it's not clear by whom or on what grounds — and were ultimately changed. In the post-OIRA version, asthma was eliminated as a quantifiable health impact of the chemical. That single change erased over 80 percent of the financial benefits from regulating formaldehyde. Meanwhile, the costs of industry compliance remained just as high, dramatically tipping the scales against stronger limits.

The explanation offered in OIRA's edited version is cryptic. It says only that the EPA "later concluded" it had insufficient information on the relationship between formaldehyde exposure and asthma to assign a dollar sum for improved health. The office presents no supporting science justifying this failure to endorse the National Academy of Sciences' findings.

Other Levers of Power

OIRA has multiple tools for slowing and even blocking rulemaking. These include ignoring an agency's submitted regulation, asking an agency to withdraw a submitted rule, and leaving a rule to languish, sometimes for years, until the agency withdraws it.

According to OIRA's governing executive order, the office is supposed to complete its review within 90 days of receiving a regulation, with the option of one 30-day extension. But rules often gather dust for far longer. As documented in an Administrative Conference analysis, delays reached an all-time peak under President Obama between 2011 and 2013.

High-level EPA staff interviewed for the analysis thought OIRA reviews took so long because of political concerns over contentious rules in the lead-up to the 2012 general election. According to the report, "The employees said their agencies were instructed that such rules were not to be issued unless deemed absolutely necessary (e.g., judicial deadline) or if it could be shown they were not controversial (e.g., clear net benefits)." Such instructions weren't issued in writing, but conveyed verbally by agency administrators who had been to meetings with key White House officials, the employees said.

The Administrative Conference report noted that in June 2013, 141 rules were under review at OIRA, of which over half had been there for more than 90 days. About half of those had been under review for more than a year, and 26 more for over two years. The rules were from a variety of agencies, including the EPA and the Departments of Energy and Labor.

One set of efficiency standards proposed by the Department of Energy has been stranded at OIRA since 2011. An EPA rule establishing a list of "chemicals of concern," those the agency flags as potentially dangerous and possibly warranting further regulatory action, sat at OIRA for over three years until the agency withdrew it in 2013. A Department of Transportation rule requiring rear-view cameras for passenger cars was marooned at OIRA for a year and a half, beginning in November 2011, before being withdrawn. During that time the DOT had data showing that, on average, "backover" car accidents injured 15,000 people annually and killed some 200 people a year, mostly children and the elderly.

When OIRA buries a rule, the agency has two choices — let it disappear or pull it and try again later. Sometimes OIRA recommends to agencies that they withdraw a rule, which would leave no fingerprints since none of these types of delays are publicly documented or explained. Curtis Copeland, former specialist in American national government at the Congressional Research Service and author of the 2013 study for the Administrative Conference said, "What I heard when talking to the agencies was that OIRA often recommends agencies withdraw rules. Then it can all be done in the dark."

All of this can have a chilling effect on agency staffers who come up with ideas for regulations and then explore, research, model and analyze them. As Copeland wrote in a 2009 Congressional Research Service survey of OIRA, "some agencies have indicated that they do not even propose certain regulatory provisions because they believe that OIRA would find them objectionable."

OIRA's motivations

While most changes made by OIRA do not recast the scope and impact of rules, many do. The GAO's 2003 report, and a follow-up in 2009, found that, of the rules examined, more than one-quarter of the regulations changed at OIRA's suggestion were substantively altered. In the earlier of the two reports, the GAO concluded that, in general, OIRA's suggested changes reduced the burden on regulated parties and, in some cases, sliced the rules' expected benefits.

John Morrall, deputy administrator of OIRA for almost 30 years until 2008, said that in high-stakes regulations, political and economic factors consistently play a role and may help account for the softening of many regulations. "Maybe on a one-by-one basis the science and cost-benefit analysis say you should regulate certain things," he said. But if OIRA approved all the scientifically valid rules agencies write, "it could destroy that sector and that could generate too much political opposition. ‚Ä¶ In particular states and congressional districts , that could be bad in an election."

Thomas Cmar, a staff attorney at Earthjustice, which sued the EPA over its delay in updating coal ash effluent limits, has, along with his organization, tracked OIRA's influence on the rule. "The regulatory process takes years, and an agency is supposed to develop reams of evidence that the actions they take are scientifically well grounded, that the rules are designed to protect people from harm," he said. Cmar believes OIRA's process is marked by favoritism for regulated industries and that it "turns our government into a completely arbitrary actor."

A Lack of Transparency?

To alleviate what some saw as OIRA's stonewalling and obfuscation, in 1993 President Bill Clinton issued Executive Order 12866. It said all federal rules must undergo a cost-benefit analysis, and it set deadlines as well as disclosure requirements on changes made during review. Clinton required that all documents exchanged between OIRA and the agency proposing a rule must be made public.

President Obama affirmed the directive, and OIRA's website now prominently quotes 12866's aim "to restore the integrity and legitimacy of regulatory review and oversight; and to make the process more accessible and open to the public."

Yet, as was true under George W. Bush and Clinton himself, the Obama administration has not fully honored 12866's disclosure guarantee, several agency officials said.

"This is being contradicted in almost every possible way," said Lisa Heinzerling, the former EPA associate administrator.

Not long after joining the office, Heinzerling, pursuant to 12866, drafted a public notice of a disagreement over a proposed rule between the EPA and OIRA. (She declined to reveal which rule.) Having reached an impasse, the parties were taking the problem up the chain of command for negotiation. However, according to Heinzerling, OIRA told her "in no uncertain terms" that she was not to make the memo public. She was surprised. "I hadn't seen it up close and hadn't known how completely it diverged from the executive order," she said. "It was unsettling even if you're a fan of having the White House in charge of regulatory matters."

Morrall, the former deputy administrator of OIRA, acknowledged the lack of transparency and defended it on the grounds that it might be politically damaging if the public learned more about the office's inner workings. "To do our job we don't need what went into our decisions out in the public domain because opponents could use that against the president."

In its 2003 report, the GAO recommended that all agencies disclose changes made at OIRA's request whenever they occur — in both informal and formal reviews. "That has never been done, under any agency," said Copeland, the expert on OIRA who is currently a special counsel at the Administrative Conference. "OIRA as an institution doesn't like that disclosure."

The GAO's 2009 follow-up report found that OIRA and the agencies had failed to adhere to seven of eight transparency recommendations made in its 2003 assessment. The one measure OIRA had taken was to disclose logs of meetings with people outside government, which it continues to do, although they are nearly impossible to search, contain minimal, sometimes-unclear information about the attendees, and have scant information about what was discussed.

While no entity has followed the transparency requirements set by the executive order, according to several former senior executives at the EPA, if the agency didn't follow OIRA's suggestions, the response would be swift. Consequences would likely be cuts to the agency's budget, a curtailing of its influence within the White House, and potentially the firing of the agency head.

Many administrative law experts, including Copeland, don't see anything inherently wrong with OIRA review, but most agree — along with the GAO and the Administrative Conference — that more transparency is needed. Still others think OIRA should be wholly revamped. Rena Steinzor, a law professor at the University of Maryland and current president of the Center for Progressive Reform, the group critical of OIRA, has called for the office to be stripped of its rulemaking powers, terminating centralized White House regulatory review. In a 2012 law review article, Steinzor wrote that the Executive would still have rulemaking power: "The President can exert sufficient control over rulemaking through the political appointees he has selected to lead the agencies."

About 21 months ago, a proposed list of widely used chemicals that may pose health risks landed at the White House’s Office of Management and Budget for review.

It’s still there.

An attempt by the Environmental Protection Agency to create a “chemicals of concern” list — part of the agency’s larger plans to improve what administrator Lisa Jackson has called an outdated and dysfunctional system for regulating toxic substances — remains stuck in the OMB’s Office of Information and Regulatory Affairs (OIRA).

The proposal has sparked heavy resistance among industry groups, some of which have met with White House officials and argued that releasing the list could harm the economy. By executive order, OIRA should finish such reviews within 90 days — or, in some cases, 120. Instead, it’s had the EPA list for 638 days — and counting.

“The reason is political pandering,” said Rena Steinzor, a law professor at the University of Maryland and president of the Center for Progressive Reform. “OIRA is a politicized place where rules go to die.”

OMB spokeswoman Meg Reilly said in an emailed statement that the office doesn’t comment on regulations under review, but “it’s not uncommon for review periods to be extended for regulatory actions that require additional time for consideration of public comment and analysis by OMB and all the affected agencies.”

Since OIRA received the proposal on May 12, 2010, it has hosted eight meetings about the list — six of them with companies and industry groups. By comparison, OIRA officials have met once with public health and environmental groups and once with staffers forDemocratic Sens. Frank Lautenberg and Sheldon Whitehouse, sponsors of legislation to reform regulation of toxic chemicals.

Big chemical companies seem most worried. ExxonMobil, for instance, argued that two of its chemicals used to make plastics flexible and durable shouldn’t be on the list. Other chemical industry powerhouses — from Dow Chemical Company to BASF Corp. and SABIC — have weighed in.

In a statement, the American Chemistry Council, the chemical industry's main trade group, said: “We are concerned that EPA is creating a list of 'chemicals of concern' for potential regulatory action, without establishing consistent, transparent criteria by which these chemicals are selected. ... It is OMB’s job to closely review the proposed action and consider any negative economic impact; we appreciate that officials are taking the time they need to fully study the matter. Failure to fully review such agency proposals undermines public and private sector confidence in the regulatory process and can seriously harm American innovation and jobs.”

Though OIRA hasn’t released the EPA list, the office has indicated that it includes Bisphenol A, found in many plastic products and believed to interfere with the hormone system; a group of eight phthalates, found in many plastics and cosmetics and believed to alter development of the male reproductive system; and certain polybrominated diphenyl ethers, used as flame retardants in many products and believed to cause thyroid problems and hamper brain development.

An EPA spokesman did not respond to requests for comment.

The rule itself would do little more than alert the public that the EPA believes certain chemicals may pose health risks and is trying to gather more information. But the U.S. Chamber of Commercecomplained in a letter to OIRA that the regulation would amount to “blacklisting” of these substances, which could lead to “market disruptions and litigation.”

The Chamber also argued that even creating a list was “a tectonic shift in EPA policy” and should be suspended until EPA lays out specific grounds for evaluating whether a chemical “may present an unreasonable risk” — the standard for inclusion on the list.

Steinzor noted, however, that the 1976 Toxic Substances Control Act specifically grants the EPA the authority to create a list of troubling compounds. Companies are “screaming bloody murder,” she said, because they fear a backlash from concerned consumers and worry further regulation of named chemicals could follow.

In the more than 35 years since Congress passed the law, known as TSCA, the EPA hasn’t used its power to flag chemicals of concern. The current proposal is part of the agency’s attempt to make the most of its authority under TSCA, which has faced fierce criticism from environmental groups and some in Congress as out of date and ill equipped to address risks from the vast array of industrial chemicals now in use. Perennial attempts in Congress to overhaul the law have failed.

Soon after taking over as EPA administrator, Jackson signaled that the agency would focus on improving regulation of toxic substances. “Assuring chemical safety in a rapidly changing world, and restoring public confidence that EPA is protecting the American people is a top priority for me, my leadership team, and this Administration,” she said in a 2009 speech.

But many of the agency’s efforts, such as the “chemicals of concern” list, have encountered resistance — including from within the administration. “A very disturbing pattern has developed with OIRA’s review of EPA proposals to better ensure chemical safety: Long delays — far in excess of the mandated 90 days — have become routine,” Richard Denison, a senior scientist at the Environmental Defense Fund, said in a statement.

When OIRA does release the list, it still won’t be official. The public will get to weigh in, and the EPA can fine-tune the rule. Then it goes back to OIRA for another review.

Mission

According to the Office's web site, the OMB's "predominant mission is to assist the President in overseeing the preparation of the federal budget and to supervise its administration in Executive Branch agencies. In helping to formulate the President's spending plans, OMB evaluates the effectiveness of agency programs, policies, and procedures, assesses competing funding demands among agencies, and sets funding priorities. OMB ensures that agency reports, rules, testimony, and proposed legislation are consistent with the President's Budget and with Administration policies.

"In addition, OMB oversees and coordinates the Administration's procurement, financial management, information, and regulatory policies. In each of these areas, OMB's role is to help improve administrative management, to develop better performance measures and coordinating mechanisms, and to reduce any unnecessary burdens on the public." [1]

On Global Warming

U.S. Vice President :{Dick Cheney:(style="background-color:#fff200"):}:'s office was behind a push to censor congressional testimony that :{global warming:(style="background-color:#fff200"):}: poses a danger to the public, according to Jason Burnett, a former associate deputy administrator at the U.S. Environmental Protection Agency. The vice president and the White House Office of Management and Budget heavily edited testimony last year by the director of the Centers for Disease Control (CDC). "I read the testimony, checked with EPA scientists, and came to the conclusion that the draft testimony was fundamentally accurate as written," Burnett stated in a letter to Barbara Boxer, who chairs the Senate Committee on Environment and Public Works. ^[1]

Lobbied by the Nuclear Industry for Loan Guarantees

In May 2007, The Hill reported that the Nuclear Energy Institute (NEI), along with "top banking institutions" are lobbying the Office of Management and Budget (OMB) and the U.S. Department of Energy (DoE) for "more comprehensive" federal loan guarantees for new nuclear power plants. "Since the April meeting" with OMB, the DoE "has proposed that the federal government cover 90 percent of loan guarantees, higher than its original guidelines of 80 percent." [2]

NEI's "New Plant Finance Task Force" is telling federal agencies that without total or near-total federal loan guarantees, which "act as default protection for private lenders," nuclear power companies will "have difficulty in financing new plants, which can cost as much as $4 billion." NEI's Richard Myers said that even increasing the loan guarantees to 90% of plant costs "will probably not be workable." A DoE spokesperson said the agency was not supporting a greater than 90% guarantee because the agency must protect "the taxpayer dollar from the potential financial risks of these projects." [3]

Personnel

Susan E. Dudley, Director, Office of Information and Regulatory Affairs

Contact Information

Website: http://www.whitehouse.gov/omb/

SourceWatch Resources

External links

Kevin Bogardus, "Nuclear power, banks link up in bid to get better financing," The Hill, May 24, 2007.
Ben Lando, "Analysis: Nuclear Loan Backing Cloudy," UPI, May 25, 2007.

Articles and resources

References

↑ "Cheney Sought to Alter Climate Discussion" Stephen Power, The Wall Street Journal, July 8, 2008.

External resources

Wikipedia help

External articles

Knowledge Enhanced Searching on the Web

Category: Nuclear PR

====

http://www.sourcewatch.org/index.php?title=John_D._Graham

John D. Graham is the 4th dean of the Indiana University School of Public and Environmental Affairs, one of the leading public affairs and environmental schools in the country. He is the former Administrator of the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget in the George W. Bush administration. According to a biographical note on the White House website, Graham's "responsibilities include coordination of regulatory review, paperwork reduction, statistical policy and information policy in the Federal government."

Prior to joining the Bush administration he was a Professor of Policy and Decision Sciences in the Faculty of Public Health at Harvard University. He founded and was director of the Harvard Center for Risk Analysis from 1990 to 2001.[1]

According to his biographical note Graham earned "his BA from Wake Forest University, his MA from Duke University and his Ph.D. from Carnegie-Mellon University. He served as a pre-doctoral fellow at the Brookings Institution and as a post-doctoral fellow at the Harvard School of Public Health. Dr. Graham has written seven books and more than 100 scientific articles and is best known for his scholarship on automotive safety and environmental policy."

Opposition to Graham's nomination

John Graham's appointment to the OIRA was hotly contested by scientists, doctors, public health professionals and environmental, consumer and labor organizations, as well as many of his own academic peers, who questioned his science and his ethical practices. His application of cost-benefit analyses to industrial pollution is controversial and tends to favor polluters by systematically overstating the costs of regulation to industry and underestimating the cost to those affected. As founding director of the Harvard Center for Risk Analysis, his acceptance of funding from America's largest corporate polluters, including Dow Chemical, DuPont, Monsanto, Alcoa, Exxon, General Electric and General Motors, was considered a conflict of interest. No environmental or consumer group is represented on the center's advisory board.

Graham has argued that smog protects people from too much sunlight, dioxin might reduce cancer in some cases, safe housing codes can kill people and pesticides on foods are a trivial problem that does not constitute a health hazard. In addition, "he claims that our choice of environmental regulations contributes to the death of 60,000 people under a theory he calls 'statistical murder'." [2]

A letter signed by 53 academics from across the country opposed Graham's nomination and questioned his credibility and scientific integrity. They stated: "Professor Graham's controversial risk management methodology discounts the real risks of well-documented pollutants such as dioxin and benzene, and makes use of extreme and highly-disputed economic assumptions. Professor Graham has shown his willingness to over-ride health, safety, environmental, civil rights, and other social goals in applying crude cost-benefit tools far past the point at which they can be justified by existing scientific and economic data... Moreover, Professor Graham has publicly rendered many opinions on complex and imperfectly understood scientific phenomena, such as the etiology of cancer and other diseases, despite his lack of a degree in the hard sciences. " It concluded: "Graham's work has, overall, demonstrated a remarkable congruency with the interests of regulated industries. In contrast, the position at OIRA requires a much more even-handed approach." [3]

Graham's role as regulatory gatekeeper

As administrator of the OIRA, John Graham has much more discretion than it would appear at first glance. He serves as the nation's regulatory gatekeeper, passing judgment on all major national health, safety, and environmental standards. Acting as "a sort of 'regulatory czar' who can block any new regulation, whether arsenic standards for drinking water, worker-protection rules or the public's right to know about toxic chemicals," Graham's position is a crucial one for overseeing essential consumer protections.[4] He has further extended his influence by appropriating the authority to carry out laws entrusted by Congress to heads of agencies such as the EPA.

Given his history of favoring industry and weakened government regulations, Graham's record since he took the post of administrator is not surprising. In ways that are always beneficial to industry, he has strong-armed agencies to weaken programs and promoted changes in scientific and economic assumptions that pervert the regulatory process. The list of Graham's pro-industry regulatory changes is extensive. A sampling includes: the purging of a backlog of violations against the Clean Air Act, adoption of a developer-financed study that claims wetlands emit more pollutants than they absorb, and elimination of OSHA ergonomics regulations that protected Americans from repetitive stress injuries.

According to Robert F. Kennedy, Jr. chief prosecuting attorney for the Hudson Riverkeeper and the senior attorney for Natural Resources Defense Council, under Graham's supervision "[the] Environmental Protection Agency has halted work on 62 environmental standards, the federal Department of Agriculture has stopped work on 57 standards, and the Occupational Safety and Health Administration has halted 21 new standards. The EPA completed just two major rules--both under court order and both watered down at industry request--compared to 23 completed by the Clinton administration and 14 by the Bush Sr. administration in their first two years." [5]

As predicted by many of his colleagues at Harvard, Graham's "persistent pattern of conflict of interest, of obscuring and minimizing dangers to human health with questionable cost-benefit analyses, and of hostility to governmental regulation in general," has proven highly detrimental to the health and safety of the very citizens his office was designated to protect. [6]

"The easy, kind of sophomoric criticism you'll hear from some of the activists is, `These guys just look at the money and they don't care about anything else.' That's not an accurate characterization," Graham told the Seattle Times.[7]

External links

http://www.hcra.harvard.edu/nomination/
Harvard College, "John D. Graham Professor of Policy and Decision Sciences in the Faculty of Public Health, accessed January 12, 2004.
Sen. Dick Durbin, "Graham Flunks The Cost-Benefit Test," Washington Post, July 16, 2001.
Robert F. Kennedy, Jr., "Crimes Against Nature," TomPaine.com.
Letter from 53 academics to the Senate Governmental Affairs Committee opposing the nomination of John Graham as director of the Office of Information and Regulatory Affairs (OIRA), May 9, 2001.
Robert Perks and Gregory Wetstone, "Rewriting the Rules, Year-End Report 2002: The Bush Administration's Assault on the Environment," Natural Resources Defense Council, January 2003.
"EPA Scientist Resigns in Protest Over Agency's Acceptance of Developer-Financed Wetlands Study, Democracy Now! October 31, 2003.
Resignation statement of Bruce Boler, former EPA biologist.
Amanda Griscom, "They Blinded Me with Pseudo Science: The Bush administration is jettisoning real scientists in favor of yes-men," Grist Magazine, Nov 12, 2003.
Cindy Skrzycki, "Overseer of the Rules for OMB: John D. Graham, the Bush administration's choice to head the regulatory branch of the Office of Management and Budget, isn't much for appearances," Washington Post, July 31, 2001.
Cindy Skrzycki, "Nominee's Business Ties Criticized," Washington Post, May 15, 2001.
Gene Karpinski, U.S. PIRG Urges The Senate To Oppose Dr. John Graham As Head Of The Office of Information and Regulatory Affairs, Letter from the Executive Director, U.S. Public Interest Research Group, to the Senate, June 13, 2001.
Douglas Jehl, "Regulations Czar Prefers New Path," New York Times, March 25, 2001.
Alex Fryer, "Bush's gatekeeper weighs costs, benefits of new regulations," Seattle Times, October 4, 2004.

mojo

MJ.com: One lesser-known example of that pattern is John Graham at the Office of Information and Regulatory Affairs. What role does he play?

RFK: He’s been an anti-environmental activist for many, many years. He founded an anti-environmental think tank at Harvard, which is funded by polluting industries that pay Graham to produce reports [essentially] defending their corporate profits. He’s developed these phony algorithms that always end in the same result, which is that industry wins and the public loses.

He runs the most powerful agency in the government today, which is the OIRA, part of the Office of Management and Budget. It’s a secretive agency inside the White House that is not subject to many of the laws that require open government. The other agencies that are charged with protecting the American environment from time to time develop new regulations in keeping with that mission. Usually it takes about eight years for a regulation to go through the regulatory process, which involves a lot of public debate, public notice and comment, hearings and review by attorneys and scientists. At the end of this painstaking and extremely democratic process, those regulations now disappear into a black hole at OIRA, which is supposed to review the regulations prior to passage. And at OIRA, the industry meets privately with John Graham and rewrites the regulations in private. When the regulations come out of his office, generally they are no longer designed to protect the public, but rather to protect industry prerogatives and profits.

MJ.com: What's the worst example of how that collaboration between industry and government has played out?

RFK: One of the worst examples is the rewriting of New Source Review. I have three sons with asthma; one out of every four black kids in New York City now has asthma. Asthma attacks are triggered primarily by ozone and particulates, and the major sources of those materials in our atmosphere are 1,100 coal-burning power plants that are burning coal illegally. The Clinton administration had initiated investigations and prosecutions against 70 of the worst of those. But this is an industry that donated $48 million to President Bush and the Republican Party in the 2000 cycle and has given $58 million since. One of the first things that Bush did when he came into office was to order the Justice Department to drop those lawsuits. The Justice Department lawyer said that this had never happened before in American history, where a president accepts money from industries targeted for investigation and prosecution, and then orders the Justice Department to drop those investigations once he gets into office. There were 70 utilities involved here and, according to EPA, just the criminal exceedences from those 70 plants killed 5,500 Americans every year. Then the administration went and rewrote the Clean Air Act, gutting the New Source rule, which means those plants will be able to discharge ozone and particulates forever.

Death by Delay: Obama Team Stalls on Chemical Regulation

by Rebekah Wilce — March 26, 2012 - 8:29am

Topics: Environment, Health, U.S. Government

Projects: Food Rights Network

The U.S. Environmental Protection Agency (EPA) has drafted a "chemicals of concern" list to restrict the use of certain chemicals and alert the public to their possible dangers. But the list remains secret and dormant because it's stuck at the Obama administration's Office of Information and Regulatory Affairs (OIRA) for review.

OIRA is a division of the U.S. Office of Management and Budget (OMB). According to Katie Greenhaw, Regulatory Policy Analyst at the government watch-dog group OMB Watch, OIRA has 90 - 120 days to review rules from a regulatory agency, before releasing the rule back to the agency to open it up for public comment. Rules then go back to OIRA for additional review before being published as final rules. This rule has been stuck at OIRA for almost two years. That means the public hasn't even laid eyes on it.

Secret List

The EPA has hinted that its list of chemicals that may cause "unreasonable risk of injury to human health or the environment" may include "a category of eight phthalates, a category of polybrominated diphenyl ethers (PBDEs), and bisphenol A (BPA)."

public citizen:

Industry Ally, Hostile to Health and Environmental Safeguards, Poor Choice for Key Regulatory Post in Bush Administration

Harvard Center Director Tapped for White House Office of Management and Budget

This week the Senate will vote on whether to confirm Bush nominee John Graham for an obscure but extremely influential government position -- Administrator of the Office of Information and Regulatory Affairs (OIRA), within the Office of Management and Budget (OMB). In this role, Graham would serve as the nation's regulatory gatekeeper, passing judgment over all major national health, safety, and environmental standards. Over the past decade, Graham has been an ally of the business community and played a leading role opposing strong government safeguards. If confirmed Graham would have the power to accomplish much of his agenda to roll back vital public health, workplace and environmental protections.

We have already seen a major attack on new public protections by the Bush administration. The president reversed his pledge to control carbon dioxide emissions and supported a congressional override of the ergonomics standard designed to prevent repetitive stress injuries. Bush also has overturned or pared down many Clinton administration rules, including those that reduce arsenic in drinking water, end new road construction in national forest wilderness areas, limit hard rock mining to reduce water pollution and improve energy efficiency standards for air conditioners.

It is clear that the president’s choice for OIRA Administrator represents more of the same. John Graham has garnered strong support from regulated industries because he has repeatedly sided with industry in opposing many health, safety and environmental standards over the past decade. As director of the Harvard Center for Risk Analysis, Graham plays a central role in undermining support for many of the country’s vital protections through his research, work with the media and testimony before Congress. Oil, chemical, auto, drug and food companies, mining and other industrial interests have heavily funded his work.

A diverse array of national organizations and prestigious academics are raising serious concerns about Graham's nomination.

Why OIRA Is So Critical

The development of new regulatory safeguards by federal agencies requires skilled professionals to conduct extensive studies, scientific research and economic analyses. Agencies also must conduct a formal notice and comment process wherein the stakeholders submit written testimony and testify at public hearings. As a result, federal agencies often take years to develop new rules (for example, the recently reversed ergonomics standard was 10 years in the making).

A series of presidential executive orders has provided that all significant pending rules are reviewed by OIRA, which means that its administrator can serve as a last-minute regulatory chokepoint on agency action. Federal safeguards on industrial chemicals, fuel economy standards, air and water pollution levels, tobacco regulation, implementation of a Patients’ Bill of Rights, and virtually every other issue that is critical to human and environmental health fall under the office’s purview.

The review power given to OIRA has, in the past, enabled conservative political appointees and government economists, many of whom are prejudiced against new regulations, to intervene in the regulatory process. OIRA has sought to control the agencies’ economic analyses so that the costs of a regulation appear greater and the benefits less; ordered agencies to base decisions on cost-benefit calculations even when prohibited by Congress, which prioritized safety first; and required agencies to reconsider data that it had already disregarded as scientifically unhelpful or flawed.

For example, under the Reagan and Bush I administrations, OIRA was viewed as a "black hole," and many needed regulations were stalled for long periods, altered to be less protective of the public, or blocked altogether. The office was the home of last resort for regulated industries: Whenever an industry did not prevail in the public rulemaking process conducted by agency experts, it came through the back door to quash a rule. President Bush I created the Council on Competitiveness, the so-called "Quayle Council," headed by Vice President Dan Quayle, to work with OIRA in facilitating industries’ anti-regulation objectives.

The Case Against John Graham

A wide range of organizations and prestigious academics recently wrote to the Senate Governmental Affairs Committee opposing Graham’s nomination and raising serious concerns about Graham’s fitness for the job. Their criticism covers three crucial areas:

1) Graham Has Deep Ties to Regulated Industries: Graham's Harvard Center for Risk Analysis has had more than 100 corporate and trade association funders since it was founded 12 years ago. Corporations contribute 60 percent of the Center’s annual budget. As the government's regulatory czar, Graham will sit in judgment over a wide range of regulatory proposals that will affect companies and industries with whom he has had a long-standing financial relationship, and for whom he has conducted research and public relations activities in opposition to government regulation. Rather than being a fair-minded assessor, opponents of Graham believe he would continue to collaborate with his industry supporters to weaken or stop the issuance of safety protections.

On April 12, 2001, 13 national organizations (including the Sierra Club, Natural Resources Defense Council, Defenders of Wildlife, AFL-CIO and Center for Science in the Public Interest) wrote to the Governmental Affairs Committee outlining their concerns about Graham’s conflict of interest. Their 16-page correspondence details numerous instances in which Graham presented questionable analytical findings that served industry’s goal, which was to avoid or delay potentially costly regulations. During these presentations, Graham identified himself as from Harvard yet typically failed to reveal his connections to interested corporate sponsors or the extent of his collaboration with industry. Graham’s habits are in marked contrast to the standard practice within academia of maintaining an arms-length -- and often even contractual -- relationship with those corporate funders that have a direct stake in the outcome of research.

The letter from the 13 organizations cites instances of Graham’s efforts on behalf of industry in relation to the regulation of tobacco, food, pesticides, cell phones, air bags and dioxin. Documents submitted with the letter reveal that Graham solicited $25,000 in the early 1990s from tobacco giant Philip Morris and later received funds through its subsidiary, Kraft Foods. Graham also wrote letters to Kraft in which he suggested the possibility of raising $25 million from the food industry for work on the "food safety debate."

In March, Public Citizen released an investigative report, "Safeguards at Risk," which details many examples of Graham's collaboration with industry and raises questions about the soundness of his research and methods. That study was endorsed by the Center for Science in the Public Interest, Health Care Without Harm, the Science and Environmental Health Network and the Center for Health, Environment and Justice.

2) Graham Has Conducted Questionable Research: Recently, two separate letters from 74 academics – including 11 colleagues of Graham’s from Harvard Medical School and the Harvard School of Public Health, which houses Graham’s Center – wrote to the Governmental Affairs Committee in opposition to the Graham nomination. Both letters raised concerns that Graham’s research has downplayed hazards faced by the public, one suggesting that his work shows "a remarkable congruency with the interests of regulated industries."

Serious questions have been raised about the positions advocated by Graham, the research underlying those positions and the possible corporate sponsorship of that research. For example, in March 1997, when questions were being raised about the safety of passenger-side air bags, Graham argued in news appearances and before the National Transportation Safety Board that a new, unpublished Center report had convinced him that passenger-side air bags were not cost effective enough to justify being mandated. His research, Graham suggested, showed that passenger-side air bags cost $399,000 for each year-of-life saved. After harsh criticism from auto safety advocates, Graham’s study was peer-reviewed.

This resulted in a dramatic turnaround by Graham, published in the Journal of the American Medical Association, showing that the cost of the same passenger-side air bags had been reduced to $61,000 for each year-of-life saved. Thus Graham’s new conclusion was that those air bags were a worthwhile investment by economic standards. Graham’s Center has received unrestricted funding from the auto industry, but it is not known in what amount, and unrestricted funding is not covered by Graham’s Center’s conflict of interest policy.

3) Graham Has Made Extensive Use of Faulty Methodologies: For years, there has been a major debate about the appropriate use of cost-benefit analysis in regulation. While some federal statutes instruct the agencies to protect public health regardless of cost considerations, other laws permit cost considerations to play a limited role.

If confirmed, Graham is expected to rely heavily on highly disputed cost-benefit calculations to determine when particular regulations are warranted. But there are numerous problems with the methods in the regulatory context. For example, OIRA sometimes uses the industries' own cost estimates, yet studies have repeatedly shown that these numbers are badly inflated, and some rules even stimulate productivity by encouraging sustainable technologies. The value of cost-benefit analysis is also limited by the lack of scientific data. Because we don't have good numbers for diseases other than cancer, calculations omit the benefits of reducing other illnesses. Nor do they take into account the value of a healthy ecosystem, which can't accurately be put into monetary terms. In short, the tools that Graham would apply at OIRA systematically short-change public health and environmental goals and can easily be manipulated on behalf of industry.

Graham has a history of misapplying cost-benefit methodology. His resume claims that "as a scholar," he is best known for a database of 500 risk interventions, which analyzes their cost-effectiveness. But in testimony submitted to the Senate Governmental Affairs Committee, Professor Lisa Heinzerling of Georgetown University Law Center has debunked Graham's work. Focusing on Graham’s research on cost-effectiveness in another study, which purported to show that 60,000 more lives could be saved if the government re-allocated its resources more efficiently, Heinzerling demonstrates that this most famous of Graham’s claims is resoundingly false. In fact, most of the egregiously cost-inefficient proposals that Graham cites as examples of regulation-run-amuck were never implemented by any agency. Heinzerling also criticizes Graham’s use of discounting, which grossly understates the value of a life.

Heinzerling also demonstrates that Graham perpetuated and encouraged a misinterpretation of his own research, claiming that his data showed that federal regulations result in, in his own words, the "statistical murder" of 60,000 Americans every year. This bit of misinformation has, courtesy of Graham’s promotion, become a shibboleth routinely used by opponents of regulation, and has been repeated dozens of times by the media, anti-regulation analysts and even by several members of Congress.

Conclusion

President Bush has nominated an OIRA Administrator who is not merely an academic. For a decade, Graham has been at the nexus of a corporate public relations effort intended to make it very difficult for federal agencies to enact new public and environmental safeguards. As Public Citizen's "Safeguards at Risk" report documents, Graham has devoted years to discrediting government regulators and shooting down safety standards through the use of economic pseudo-science.

Given Graham's past academic work and close collaboration with regulated industries, his appointment to OIRA would give industry a back door to the White House, enabling the Bush administration to block or neuter new regulatory initiatives under the misleading pretense that they fail on cost-benefit or "sound science" grounds. In ways the public and Congress may never know, the appointment of John Graham to this powerful office within the OMB could dramatically affect the quality of the air we breathe, the wholesomeness of the food we eat and the safety of the cars we drive.

* *

Back to Graham Page

Back to Public Citizen's John Graham Report

Back to Federal Regulations: Health, Safety & Environmental Protections

Back to Congress Watch Homepage

Back to Public Citizen Homepage

Office of Info & Reg Affairs OIRA

1. Failed to Aggressively Regulate Toxic ‘Forever Chemicals’

2. Allowed a Rocket Fuel Chemical to Stay in Drinking Water

3. Allowed Scores of New Chemicals, Including New Toxic PFAS, Onto the Market Without Adequate Oversight

4. Failed to Protect Workers From a Deadly Paint-Stripping Chemical

5. Cooked the Books on the “Civil Action” Chemical

6. Pressured EPA Scientists to Drop Evaluations of Toxic Chemicals – Including Formaldehyde

7. Rolled Back Clean Water Protections

Trump Admin ‘Waging a War on Children’ Through EPA Rollbacks

Children's health language deleted from climate rule

Contents

Tasks:{:(style="margin-right:0px;margin-left:0px"):}:[edit:{]}:

History

Criticism

The Rise of a Federal Power

Coal Ash Controversy

Formaldehyde: A Case Study

Other Levers of Power

OIRA's motivations

A Lack of Transparency?

More stories about

Mission

On Global Warming

Lobbied by the Nuclear Industry for Loan Guarantees

Personnel

Contact Information

SourceWatch Resources

External links

Articles and resources

Related SourceWatch articles

References

External resources

External articles

Opposition to Graham's nomination

Graham's role as regulatory gatekeeper

External links

Death by Delay: Obama Team Stalls on Chemical Regulation

Secret List