Department of Transportation's Crude-by-Rail Safety Standards Keep Chugging Along

According to the Office of Information and Regulatory Affairs’ (OIRA) records, the Department of Transportation submitted its draft final crude-by-rail safety rule for White House review late last week.  OIRA’s review of draft final rules represents the last hurdle in what can be a long and resource-intensive rulemaking process; just about any rule of consequence cannot take effect without OIRA’s final approval.  Once completed, the crude-by-rail rulemaking would help to avoid train derailments and crashes involving the more than 415,000 rail-carloads of flammable crude oil traveling across the United States each year, and to minimize the consequences of such catastrophes if and when they do occur.  A recent CPR Issue Alert featured the rulemaking as among the essential 13 regulatory actions that the Obama Administration should commit to completing during its remaining time in office.

OIRA’s centralized review can be a highly contentious and politically charged process, as it allows corporate interests to attack rules they find inconvenient behind closed doors out of the public view.  A 2011 CPR White Paper found that industry lobbyists dominate these closed-door meetings, with 65 percent of the meetings’ participants representing regulated industries.  In these meetings, industry lobbyists typically find an audience—often made up of the conservative economists that comprise much of OIRA’s staff as well as political operators from the West Wing—that is sympathetic to their pitch.  This White Paper and other academic research has shown that industry dominance of the OIRA review process has its desired antiregulatory effect, resulting in rules being delayed, watered down, and sometimes blocked altogether. 

The crude-by-rail safety standard is likely to be the target of this kind of 11th hour industry lobbying.  When the draft proposal underwent OIRA review last summer, it was the subject of 19 meetings—all of which were with industry groups that would potentially be subject to the rule’s requirements.

CPR will keep close watch on the process to monitor how frequently industry groups parade through the doors at the Old Executive Office Building to make their case for weaker safeguards, delays in implementation, or both.  CPR will also monitor whether the OIRA review process goes beyond the 90-day maximum permitted by Executive Order 12866—the document that laws the ground rules for OIRA’s review process—and what changes are made to the final rule during the process (assuming OIRA complies with Executive Order 12866’s requirements mandating that it publicize the “red-line” document showing what changes have been made during the review process).

In the meantime, the Obama Administration is to be commended for demonstrating the appropriate sense of urgency in moving the crude-by-rail safety standard toward completion.   Despite the complex technical and engineering questions the rule entails, and despite the powerful entrenched corporate interests that the rule would ultimately regulate, the Department of Transportation appears to be poised to take this rule from the Advanced Notice of Proposed Rulemaking stage to completion in less than three years.  It is not uncommon for similar rulemakings to stretch out over eight years or longer.  This rapid progress is a testament to what presidential administrations can achieve if they resist political interference and make safeguarding the public a top priority.  We urge the Obama Administration—and indeed future presidential administrations—to adopt this approach when implementing regulations that are necessary for protecting people and the environment.