CPR Scholars weigh in on the 20th anniversary of OIRA’s 12866

From: Center for Progressive Reform

Last Friday, Executive Order 12866, which governs the work of OMB’s regulatory review arm, the Office of Information and Regulatory Affairs (OIRA) reached its 20th anniversary.

Center for Progressive Reform Member Scholars marked the anniversary with a series of blog posts, in which they examined the Order’s reach, OIRA’s profound influence on the regulatory process,  as well as persistent problems with cost-benefit analysis, transparency, timeliness of regulatory reviews, and the centralization of executive power.

Here’s a roundup of their contributions:

David Driesen: Keeping OIRA from Harming Efforts to Reduce Greenhouse Gas Emissions

“As of this writing, more than six years have elapsed since the Supreme Court held that greenhouse gases were pollutants under the Clean Air Act, many of them under a President committed to addressing climate disruption. In all of that time, EPA has not imposed any limits on the greenhouse gas emissions of power plants or factories, thus making climate disruption irretrievably worse than it might have been.”

Bill Funk: Time to Stand Up and Be Counted

“The heads of agencies, however, principal officers of the United States, have taken an oath to ‘faithfully discharge the duties of the office’ they hold. They presumably believe that the proposed and final regulatory actions they submit to OIRA are called for by the duties of their office. If they are not willing to stand up and be counted when OIRA attempts to override their judgments, they are violating that oath.

Lisa Heinzerling: 20 Years of 12866

“President Obama’s own executive order on regulatory review, issued in 2011, discusses only the substance, and not the process, of regulatory review, and thus fails to solve any of the problems related to delay, transparency, or procedural regularity that I have described. Nor has OIRA itself solved these problems.”

Thomas McGarity: A Long History of Analysis and Intervention

“The 20th anniversary of Executive Order 12866 is not a cause for celebration. It should be a cause for careful examination of the continued need for centralized review of protective federal regulations under a cost-benefit standard.”

Nina Mendelson: Regulatory Review Needs to Comply with Transparency Requirements

“On this 20th anniversary of Executive Order 12866, we should hold OIRA to its own standards. Just as OIRA requires detailed information and analyses to assess agency rules, we need information to evaluate the work centralized regulatory review is actually doing and when it is worthwhile.”

Sidney Shapiro: More Politics, Less Expertise: What OIRA has Wrought

“Other offices in the White House, besides OIRA, are more deeply involved in making regulatory decisions than in any other previous administration.  This deeper involvement has made it more likely that regulatory decisions will reflect political considerations rather than policy considerations.  When this happens, OIRA’s regulatory review under E.O. 12866 can become a fig leaf covering up for the political decisions that are being made.”

Amy Sinden: Executive Order 12866’s Cost-Benefit Test is Still with Us and I Can Hear Ben Franklin Rolling Over in His Grave

“Genuine formal economic cost-benefit analysis cannot be achieved, or even approximated, in practice. Data deficiencies, knowledge gaps, resource constraints, and fundamental irresolvable theoretical dilemmas make it impossible.”

Rena Steinzor: The End of Centralized White House Regulatory Review: Don’t Tweak it, Repeal It

“Executive Order 12866 did not create OIRA, but it provides the rationale for its continued existence in the same way that a menu is the reason people travel to a restaurant. As I have argued elsewhere, the solution is not to tweak the EO, but to repeal it, leaving OIRA to fulfill its limited statutory missions—forestalling excessive paperwork, for example.”

Robert Verchick: White House Buries Itself in Analysis of Non-Economically Significant Rules: A Tour of OIRA’s Regulatory Dashboard

“Executive Order 12866 requires agencies to submit for review any rule that is ‘economically significant,’ which is defined as having ‘an annual effect on the economy of $100 million.’ So how many of those 118 rules stacked up at OIRA are ‘economically significant’?”

Thank you.

Jake Caldwell

Executive Director Center for Progressive Reform www.progressivereform.org

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