Midnight Regulations: Congress Lends a Hand
The following is cross-posted by permission from Executive Watch, a blog maintained by the Duke Law School Public Law Program.
Every time the presidency has changed parties in recent years, the outgoing president has issued regulations in the final months of his presidency implementing policies at odds with the policies of the incoming president. The critics of these regulations invariably deride them as “midnight regulations” that have been rushed through the regulatory process. Propublica is monitoring the Bush midnight regulations, here. Then the incoming president sets out to stop or undo many of them by issuing a regulatory “stop order” to the agencies and departments.
Stopping a regulation from taking effect is much less resource intensive than undoing one, so every recent president stop order, including President Obama’s, has contained a request that no agency or department send any regulations for publication in the Federal Register until they have been reviewed by a political appointee of the new president, and that they withdraw any regulations that the Office of the Federal Register has received but not published.
For regulations that have been published, the Obama memorandum – which was issued by his chief of staff, Rahm Emmanuel, on January 20 …
Time Magazine has a piece this week on Cass Sunstein’s likely nomination to be the Obama Administration’s “regulatory czar” (director of the Office of Information and Regulatory Affairs) and the debate over the use of cost-benefit analysis it has touched off. Despite Professor Sunstein's progressive views on most issues, progressives are concerned that his methods of regulatory analysis, if and when he’s confirmed, may not differ significantly from those used during the Bush years. The Time story, here, captures the budding debate.
In recent weeks, an unusual convergence of events has served to elevate somewhat the public profile of cost-benefit analysis (CBA). Before then, CBA was an obscure and highly complex tool of policy analysis—the kind of thing that hardcore policy wonks would wonk about when the subjects of their usual policy wonkery weren’t wonkish enough. Foreseeable future events suggest that the public profile of CBA will continue to rise.
The process began in early January when word emerged from the Obama transition team that the then-President-Elect planned to name Harvard law professor Cass Sunstein to head the Office of Information Regulatory Affairs (OIRA). A little known but powerful bureau in the White House Office of Management and Budget (OMB), OIRA supervises the entire federal regulatory apparatus, imposing its will by individually reviewing all major federal regulations through the lens of CBA. OIRA’s use of CBA …
We’ve written a great deal about Cass Sunstein, the Harvard law professor who is expected to get the nod to be the “regulatory czar” for the Obama Administration. In a nutshell, our concern is that Sunstein will stifle the efforts of health, safety, and environmental protection agencies to struggle to their feet after eight long years of evisceration by the Bush Administration’s regulatory czars, John Graham, and his protégé, Susan Dudley.
But, we got to thinking, just because the 30-year tradition of regulatory czars is to kill regulations, leaving people to fend for themselves in the “free” market, should not mean that regulation-killing is the only thing in the job description. What if “regulatory czar” was the person ultimately responsible for making sure the Executive Branch produces good and needed regulations, cracking the whip to make sure we had rules to make sure kids don …
Observers concerned with the current dysfunctional state of the U.S. regulatory system will be letting out a collective sigh of relief following the publication of Executive Order 13497. Among other things, this Order officially revokes the controversial Executive Order 13422, issued during George W. Bush Administration.
Issued in 2007, Executive Order 13422 amended President Clinton’s September 1993 Executive Order 12866, which established an institutional framework for centralized regulatory review. Generally speaking, under this framework, the Office of Information and Regulatory Affairs (OIRA)—an obscure but influential bureau in the White House Office of Management and Budget (OMB)—is authorized to review all major federal regulations and to do so through the lens of cost-benefit analysis.
Since its original publication, Executive Order 13422 has been criticized by many environmental, public health, and safety advocates, CPR Member Scholars among them, for creating an unnecessary barrier to the …
This morning, the Center for Progressive Reform published a report on some of the issues that will confront President Obama’s “regulatory czar” Cass Sunstein, if, as seems likely, he is nominated and confirmed to be the director of OMB’s Office of Information and Regulatory Affairs.
I’ve blogged on this before, and our report, Reinvigorating Protection of Health, Safety, and the Environment: The Choices Facing Cass Sunstein, speaks for itself, so I won’t go on too long here. The report fleshes out a number of significant differences that we have with the regulatory methods and outcomes Professor Sunstein has embraced – his approach to cost-benefit analysis first and foremost. We believe OIRA’s 25-year record of applying cost-benefit amply demonstrates that it is an inherently flawed method of evaluating proposed regulations. Time and again, benefits (to the public) are understated and costs (to industry) are …
Editor's Note: With the Bush Administration's remaining time in office now measured in hours, we asked CPR Member Scholars to remind us of some of the less publicized moments of the Administration's record on environmental issues. Following is the third of several entries that we'll run on CPRBlog before President Bush returns to Texas. Below, Joe Feller discusses Bush Administration regulations on livestock grazing on public lands.
In 2003, the Bush administration developed new proposed regulations to govern livestock grazing on over 150 million acres of federal public land, According to the administration, the new regulations were designed to "improve working relationships" between the government and ranchers and to "protect the health of rangelands." In fact, the new regulations would have repealed some important environmental standards and rendered others unenforceable, removed opportunities for public notice and input, slanted analyses and appeals procedures to …
Thursday’s big news on the regulatory front was that President-elect Obama plans to nominate Harvard Professor Cass Sunstein to be the head of the White House Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) – the so-called “regulatory czar” of the federal government. The appointment means that those of us expecting a revival of the protector agencies—EPA, FDA, OSHA, CPSC, and NHTSA—have reason to worry that “yes, we can” will become “no, we won’t.”
The reason for the pre-Russian Revolution appellation is that over the past quarter century, OIRA has become a choke point for federal regulation. Since Ronald Reagan, regulations with any significant impact have had to pass through OIRA’s doors, and while there, many a protective regulation has come to grief. During the Bush years, now a mere 11 days away from ending, OIRA ably accomplished …
The reporters of ProPublica continue their impressive coverage of the Bush Administration’s midnight regulations. Most of the rest of the media behaves as if the nation’s 43rd President is already out of power. But the nonprofit, wave-of-the-future-if-we’re-lucky investigative outfit has built an impressive, and frankly distressing, list of last-minute regulations – in the process driving home the point that even lame ducks can paddle furiously just below the surface.
The most recent entries on ProPublica’s list include efforts to remove the Northern Rocky Mountain gray wolf from the endangered species list, weaken protections against “fugitive emissions,” pull back on restrictions on the use of the antimicrobial drug cephalosporin in livestock bound for dinner tables, and eliminate a rule requiring the Department of Veterans Affairs to obtain written consent from patients before testing them for HIV and then to provide pre- and post-test counseling. Read …
A story in the Washington Post over the holidays offers up a nice case study in how regulated industries and federal agencies charged with regulating them have grown far too cozy. The story drew back the curtain on how the manufacturer of a toxic metal called beryllium managed to defeat efforts by the Occupational Safety and Health Administration to establish a reasonable workplace standard, and then succeeded in corrupting an effort by an OSHA staffer to warn workers of the harms to which they were being exposed.
First some explanation. More than half a century ago, the Occupational Safety and Health Administration established a workplace standard for beryllium. Lighter than aluminum but stronger than steel, the metal is used in weapons production and for a variety of other purposes, including the manufacture of alloys used to fill cavities in teeth. Unfortunately, in every production process involving beryllium …
