Congress squeezes Obama's reg czar about lack of transparency

Celeste Monforton

Celeste Monforton

Amro Ali worked as an environmental engineer at the state and local government levels in North Carolina to enforce the laws and regulations that govern air and water quality. He holds a bachelor’s and a master’s degree in chemical engineering. He is currently pursuing his master’s degree in sustainability at Wake Forest University.

Melanie Benesh is a legislative attorney at the Environmental Working Group. She provides legislative and regulatory analysis of federal food, farm and chemical law. Full bio.

Michelle Bryan is a professor of Law at the University of Montana, and teaches in the school's Natural Resources & Environmental Law Program. Full bio.

Chanté Coleman is the Director for the Choose Clean Water Coalition, where she leads the Coalition’s work to protect the Chesapeake Bay by bringing together 200+ organizations in the watershed, which includes Maryland, Virginia, Pennsylvania, Delaware, West Virginia, New York, and the District of Columbia. She focuses on planning and development of grassroots/grasstops outreach, political strategy, federal policy and analysis, lobbying, media outreach, organizing conferences and workshops, research, writing and fundraising. Full bio.

Thomas Cluderay is general counsel at the Environmental Working Group. He leads EWG’s legal team and oversees all of the organization’s legal matters. He also works with the government affairs team to develop strategies for advancing EWG policy initiatives, represents EWG before lawmakers and other government bodies and provides regulatory and legislative analyses with an emphasis on public health, consumer protection and environmental policy. Full bio.

Mariah Davis is Field Manager of the Choose Clean Water Coalition. A Virginia native, she has led and executed clean water and climate action strategies to engage elected officials on the importance of protecting and sustaining programs most viable to the Chesapeake Bay. She strives to promote environmental justice to ensure overburdened communities share equitably in the benefits of clean water.

Kerry Darragh is a senior associate at The Hatcher Group, where she works with environmental and health care clients such as the Maryland Clean Agriculture Coalition, Behavioral Health Coalition of Maryland, American Rivers and Maryland Pesticide Education Network to help them achieve their policy and communications goals.

Elise Desiderio is a law student at the University of Maryland Carey School of Law.

Elizabeth Grossman is the author of Chasing Molecules: Poisonous Products, Human Health, and the Promise of Green Chemistry, High Tech Trash: Digital Devices, Hidden Toxics, and Human Health, and other books. Her work has appeared in a variety of publications including Scientific American, Salon, The Washington Post, The Nation, Mother Jones, Grist, and the Huffington Post. Chasing Molecules was chosen by Booklist as one of the Top 10 Science & Technology Books of 2009 and won a 2010 Gold Nautilus Award for investigative journalism.

Melissa Kelly is the staff director and attorney at the Center for Land, Environment, and Natural Resources (CLEANR).

Robert Meltz is Special Counsel at Defenders of Wildlife.

Monte Mills is an assistant professor of law and co-director, Margery Hunter Brown Indian Law Clinic at the University of Montana. Full bio.

Celeste Monforton joined the Milken Institute School of Public Health in 2006. She is a regular contributor to the "Pump Handle," a blog known as "a water cooler for the public health crowd." She continues her work in occupational health and maintains her ties to The George Washington University by serving as a professorial lecturer. Full bio.

Kevin Morris is a J.D. candidate at the University of Hawaii at Manoa William S. Richardson School of Law. He serves as a research assistant for CPR Member Scholar Maxine Burkett.

Alexi Nathan is a rising third-year law student studying environmental law and human rights at American University Washington College of Law.

Hari M. Osofsky is dean of Penn State Law and the Penn State School of International Affairs and Distinguished Professor of Law, professor of international affairs, and professor of geography. Dean Osofsky’s more than 50 publications focus on improving governance and addressing injustice in energy and climate change regulation.

Jarryd Page is an intern at the Center for Progressive Reform. Before interning at CPR, he earned a B.S. from the University of Maryland's Environmental Science & Policy Program in 2017. He has previously worked at National Geographic and served as Adjunct Lecturer at Marymount University. He also holds a B.A. in Art History from University of Wisconsin-Madison and an M.A. in Art History from the University of Kansas.

Eric Panicco is a candidate for Master of Arts in Sustainability at Wake Forest University. Full bio.

Shannon Roesler is a Professor of Law at the University of Oklahoma City School of Law. Before joining the law school faculty, she served as a law clerk to the Honorable Deanell Reece Tacha on the United States Court of Appeals for the Tenth Circuit. She was also a staff attorney and teaching fellow in the International Women’s Human Rights Clinic at Georgetown University Law Center and a visiting faculty member at the University of Kansas School of Law. University bio.

Michael Robinson-Dorn is the founding Director of the Environmental Law Clinic, Interim Director of the Center of Land, Environment, and Natural Resources (Winter 2018), and Clinical Professor of Law, at UC Irvine School of Law. He and his Clinic students represent clients on a wide range of environmental and natural resources matters, and have appeared on behalf of those clients in trial and appellate courts across the country. Full bio.

Vanessa Zboreak is a Professor of Practice at Wake Forest University School of Law. Her research centers around land use law as a public policy instrument, particularly state and local government land use policies influencing food systems, environmental justice, environmental health, sustainable communities, and demographic shifts. She received a B.A. from Grinnell College and a J.D. from Wake Forest. Full bio.

March 9, 2015

This blog is cross-posted from the Pump Handle.

It’s a rare thing on Capitol Hill when a member of the Administration is on the hot seat from both sides of the aisle. But that’s what happened on Tuesday when President Obama’s regulatory czar, Howard Shelanski, JD, PhD, testified at a joint hearing of two subcommittees of the House Committee on Oversight & Government Reform.

The Republican Chairman Mark Meadows (R-NC) and Ranking Member Gerry Connolly (D-VA)and other subcommittee members, peppered him with questions about OIRA’s lack of transparency in numerous arenas. Their motivations were different, but they were equally tough in their questioning. Republicans don’t think OIRA is doing enough to reign in regulatory agencies, while Democrats want OIRA to complement, not impede, agencies’ work.

I could relate to Chairman Meadows when he pressed Shelanski about releasing documents related to OIRA’s review of an agency regulation. That’s a topic that is close to my heart as I’ve filed numerous FOIA requests—during both Democratic and Republican Administrations—to obtain such records.

Meadows read from Executive Order 12866 (EO) which directs OIRA’s activities.

OIRA shall make available to the public all documents exchanged between OIRA and the agency during the review by OIRA under this Section.

I’ve referred to that exact language when I’ve filed my FOIA requests. I did so, for example, when the Labor Department proposed a regulation for workers aged 15 years or younger to be prohibited from doing some of the most dangerous tasks on farms. OIRA’s review lasted more than 9 months and child safety advocates suspected that Tom Vilsack’s USDA, on behalf of the agriculture industry, was trying to stop the rule. We wanted to see the emails and other correspondence written during that time by OIRA, USDA, Small Business Administration and other agencies about the proposal. We wanted to know which agencies were trying to quash a regulation design to protect young workers’ lives?

I agree with Meadows that the language “shall make available to the public all documents exchanged…” is pretty darn clear.

Shelanski responded to Meadows, saying:

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

Obama’s guy was not budging on this one.

Ranking Member Connolly and Cong. Matt Cartwright (D-PA) were well prepped for the hearing. It was clear to me that they’d read some of the work by the Center for Progressive Reform (CPR) on OIRA’s improper influence over decision-making by our public protection agencies (e.g., Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety and the Environment.) At one point in the hearing, Shelanski bristled when a Democrat referred to a CPR report. He responded with a scowl:

“I’m familiar with the Center’s criticism.”

Connolly raised concerns about OIRA’s bad track record on completing reviews within 90 days as prescribed in the EO. The congressman noted that the OIRA website allows the public to see how long a proposed or final regulation has been with OIRA for review, but

“there’s no explanation for why the delay. Why not? And are you working on that?”

Shelanski responded:

“…one of the things that happens very early in the review process is that the rule goes out for inter-agency comment. And we unfortunately do not have the authority to compel that commentary on as fast a timeline as we would often like, and when you’ve got a lot of agencies commenting on a particular rule, it can take some time to get that feedback. Moreover, once we incorporate that feedback and re-transmit it back to the rulemaking agency, we have no control over how long that agency takes to bring the rule back to us.

So, to be perfectly frank, long periods of time can go by when the rule, in fact, is not at OIRA. it is under review, but it has been passed back for further work, consideration and analysis by the agency.”

The section I highlighted is something I’d not heard previously. When I want to track the status of OIRA’s review of an agency regulation, I go to this page at RegInfo.gov. It shows which rules are being reviewed by OIRA and when they were submitted for review. It says “submissions under review.”

Is Mr. Shelanski saying that there may be regulatory actions on that list that are no longer under review because they’ve been retransmitted back to the agency? If that’s the case, why doesn’t the Administration just indicate that on the website?

Congressman Connolly seemed satisfied with Shelanski’s explanation of how the review process works. He said:

“That’s a perfectly rational explanation. So post it. …Saying ‘agency X is still reviewing it’ …you put a little pressure on them to maybe accelerate their review because they are now under scrutiny.”

“When I was chairman of my county, I started a multi-year transportation plan for spot improvements. I put up on a website every project we were going to fund, I put up how much it was going to cost, I put up when we were proposing to have it done, and if there was a delay, we posted why, to make myself accountable. And you know what? You’d be amazed at how quickly the bureaucracy moves when there is that public accountability.”

During the hearing, two OIRA staffers were sitting behind Shelanski and diligently taking notes. I hope they put a big star next to Cong. Connolly’s recommendation. If an agency rule has been “passed back for further work, consideration and analysis by the agency,” the RegInfo.gov website should indicate that. It could say:

“Returned to agency for further analysis. To be resubmitted again for review.”

Likewise, if the ball is in OIRA’s court, that’s what should be reflected for the public on the website. It is “under review.”

As someone who has complained here about OIRA’s failure to meet its publication deadlines for the Administration’s semi-annual regulatory agenda, I chuckled when Chairman Meadows’ staff displayed a graphic. It show the publication dates for the last five regulatory agendas. Here’s what it showed:

Fall 2012 agenda: published the Friday before Christmas
Spring 2013 agenda: published the day before July 4th
Fall 2013 agenda: published the day before Thanksgiving
Spring 2014 agenda: published Friday of Memorial Day weekend
Fall 2014: published the Friday before Thanksgiving

Meadows said:

“If you truly want transparency, why are you rolling this out at a time when people wouldn’t really be focusing on it? That’s what we call the Friday afternoon data dump, but it is really what you are doing with the unified agenda. Why would you do that?”

Shelanski: “With all respect sir, the agenda remains posted.”

Meadows: “I understand, but when it comes out, it is newsworthy.”

I liked the chart with the holiday time releases, but Meadows failed to mention something else. The agendas are supposed to be published in April and October. None of them met that deadline.

James Goodwin with the Center for Progressive Reform offers some of his own views about Tuesday’s hearing. He observed the much-needed attention by Cong. Connolly and Cong. Cartwright on what James calls:

“the absurdity of OIRA’s ‘open door’ meeting policy.”

I couldn’t agree more with James that the hearing was worthwhile, but only scratched the surface of the problems with OIRA—problems that have real consequences for people’s lives and health.

Congress squeezes Obama's reg czar about lack of transparency

March 9, 2015

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