Mission Critical: Under New Regulatory Czar Shelanski, OIRA Must Begin to Affirmatively Help Reinvigorate the Regulatory System

Welcome aboard, Administrator Shelanski.  You’re already well into your first week on the job as the head of the White House Office of Information and Regulatory Affairs (OIRA).    You’ve already received plenty of valuable advice—during your confirmation hearing and from the pages of this blog, among other places—on how you can transform OIRA’s role in the regulatory system so that it’s not a continued impediment to effective government.  For example, many have urged you to end the pattern of long-overdue reviews at OIRA (at last count, 72 of the 137 rules undergoing review are past the 90-day limit provided for in Executive Order 12866), to improve transparency of OIRA’s reviews so that decision-makers can be held publicly accountable for changes they make to pending safeguards, and to restrict the use of cost-benefit analysis as a means for justifying the dilution of safeguards so that they are weaker than what applicable law requires.  These practices not only leave the public inadequately protected against unreasonable risks; they also amount to a kind of usurpation of the public will by thwarting the effective and timely implementation of laws enacted through the constitutionally-defined legislative process that is central to our unique republican form of government.

Yes, transforming OIRA so that it is not objectively “bad” is an important start.  But now I would like to urge you to think bigger and bolder.  In particular, I would like you to re-imagine OIRA’s role in the regulatory system so that it operates as a positive force for “good.”  In this new role, OIRA would actively support the efforts of protector agencies—such as the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA)—to achieve the statutory missions that Congress has assigned to them in a vigorous, timely, effective, and wise manner.  As you continue to settle into your new job, I encourage you to think about how OIRA can start taking the following affirmative steps:

• Help to ensure that agencies have the resources they need to achieve their statutory missions.  One of the reasons that agencies cannot fulfill their statutory missions is that financial resources and available personnel have been reduced or maintained at constant levels in recent years.  This has occurred even as the problems these agencies face have become more complex, forcing them to effectively do more with less OIRA should work with agencies to help them develop analyses—“trued-up budgets”—that lay out for Congress all of the money an agency would need to fully perform its mandated duties.  These analyses would include the funds necessary to make current programs function effectively, to implement newly mandated programs, and to keep up with changing circumstances.  
• Help agencies to develop strong, proactive agendas.  Each agency must adopt and continuously refine an agenda for advancing its statutory mission that both properly prioritizes the agency’s regulatory actions and allows the agency to anticipate and respond to new emerging issues.  The design of this agenda should be primarily informed by the provisions of the statutes under which an agency operates and the best available science, while consideration of economic efficiency should be relegated to a more modest, ancillary role.  OIRA can support these efforts without substituting its judgment for agencies’ more expert assessment of their priorities.  In particular, OIRA can help by seeking to promote greater interagency coordination of agency agendas so as to minimize conflicts or unnecessary duplication and maximize the timeliness and effectiveness of their implementation.  OIRA can also help by identifying holes in the current regulatory safety net—such as the apparent lack of oversight of the fertilizer storage industry, which contributed to the tragic explosion in West, Texas, that left 15 people dead and caused more than $100 million in damages to the surrounding community.  
• Help agencies to obtain enhanced legal authority when necessary.  OIRA should work with agencies to identify those areas where the agency needs enhanced legal authority in order to address new and emerging issues that are relevant to their statutory missions. For many health, safety, and environmental agencies, the statutes under which they operate have not been reviewed or refreshed in two decades.  In the interim, shortcomings in those statutes have been revealed and new public health, safety, and environmental problems that were not initially addressed by the original statutes have emerged.  OIRA can help regulatory agencies to identify what updates and expansions of statutory authority are needed and can act as advocate on behalf of the agencies, helping them to present critical information to Congress and the President so that they can make informed policy choices.  
• Undertake research that will help inform agency decision-making or improve the rulemaking process.  OIRA is uniquely positioned to research topics of broad importance to regulatory decision-making.  Regulated industries repeatedly overestimate the costs attributed to rules and regulations; OIRA should take an active role in objectively examining their concerns and those of public interest organizations.  Regulatory agencies can use the results of this research to inform and improve their regulatory decision-making.  In addition, regulated industries have learned to exploit their vast resources to hijack the various opportunities for public participation in the rulemaking process—such as the opportunity to comment on proposed rules—with the effect of excluding the voices of real people who would benefit from these rules.  OIRA should examine and experiment with innovative ways to “level the playing field” so that the public interest has a meaningful seat at the decision-making table throughout the rulemaking process.

OIRA has pursued a misguided anti-regulatory course for a long time now, so I don’t expect you, Administrator Shelanski, to be able to right the ship overnight.  But, the next four years will go by much more quickly than you might imagine.  If you’re going to make any meaningful progress on achieving this critical mission, you will need to get started right away on the tasks outlined above.  If by the end of those four years you have achieved some significant measure of success in transforming OIRA, you will have left behind an important legacy for the American people: a regulatory system that is able to respond effectively and quickly to complex challenges such as climate change and that is better positioned to avert industrial catastrophes, such as the BP oil spill or the West, Texas, fertilizer explosion.