By Liz Borkowski

Earlier today, the House of Respresentatives Committee on Science and Technology held a hearing on President Bush’s amendements to Executive Order 12866, and three of the witnesses painted a dismal picture of regulation under these new rules. (The fourth, William Kovacs of the U.S. Chamber of Commerce, suggested that small businesses are drowning under regulations and the new requirements are needed to stem the tide.) David Michaels and Celeste Monforton have also written here about why this new order is problematic.

Bush’s amended executive order is the latest version of an EO that President Reagan first issued and President Clinton amended. It’s controversial because it gives the Office of Information and Regulatory Affairs (OIRA), which is part of the executive branch, additional authority over activities of regulatory agencies, including the EPA, FDA, OSHA, and USDA. It also creates new requirements for the agencies – including an analysis of “market failures” – and subjects more of their work to these requirements. The witnesses at today’s hearings emphasized that the overall effect of the EO would be to make it extremely difficult for already overstretched agencies to do their jobs.

Sally Katzen, the first witness, headed OIRA under Clinton and offered the perspective of someone who favors strong executive control over agencies. “I am a strong proponent of centralized review of agency rulemaking, and have often spoken and written in support or defense of OIRA,” she said by way of introduction. Her concern about this executive order, she explained, has to do with its position in a long chain of Bush Administration activities that are making it harder for regulatory agencies to do their jobs. The agencies today, she said, “Have at least one arm tied behind their back, two ten-pound bricks tied to their ankles, and they’re set on an obstacle course to navigate before they can issue any regulations.”

Katzen’s written testimony describes the specific requirements that the Bush Administration has attempted (not always successfully) to heap onto regulators: The Information Quality Act, Proposed Draft Peer Review Standards for Regulatory Science, Circular A-4, the Proposed Risk Assessment Bulletin, and Agency Good Guidance Practices. She concludes that “the result is that fewer regulations can be issued – which is exactly what the business community has been calling on the Administration to do.”

More appointees, less accountability
The EO establishes a Regulatory Policy Officer position at each of the agencies, and that officer is to be appointed by the president. Both Katzen and the second witness, David Vladeck (a former director of Public Citizen’s Litigation Group who now heads the Insittue for Public Representation at Georgetown University Law Center), pointed out that the EO does not say that this officer will be subject to Senate approval.

In his written testimony, Vladeck points out that right now, the heads of federal agencies are accountable both to the President (who nominates them) and the Congress (who confirms them). Now, the Regulatory Policy Officers will control the agencies’ regulatory output, but they will not be accountable to Congress in the way they are to the President.

Rick Melberth, Director of Regulatory Policy for OMB Watch and the hearing’s final witness, states in his written testimony that having these executive-branch appointees at the agencies creates the possibility that OIRA will effectively be able to quash any contemplated regulatory or guidance issues before agencies even get to the stage of proposing them for their regulatory plans.

Costs, Markets, and Failures
Much of the witness’s testimony and the questions that followed it centered around the new requirement that agencies identify the particular “market failure” that their regulations will address. Katzen pointed out that not all problems are market failures; just think of civil rights. Vladeck and Melberth both invoked examples of auto safety – airbags and a tire guage that can help prevent vehicle rollovers – as advances that had to be addressed by legislation rather than markets, and Vladeck pointed out that the term “market failure” is open to interpretation from OIRA. The overarching point, though, is that we can’t rely on such an approach to protect our health and welfare, as Vladeck states in his written testiomony:

We ought not wait for “market failure to exact a toll on human health and safety before we permit our agencies to act. In the health and safety context, the only way market failures becomes apparent is when the body count gets too high. The point of regulation is to prevent market failure, not to try to remedy it once the damage is done.

The related issue of cost-benefit analysis was also discussed in the hearing, and Katzen drew an important distinction between using such analysis as an input – something useful for agencies to be able to consider while preparing regulation – and something that would determine the fate of the regulation.

The Battle of the Branches
Finally, these witnesses reminded the committee members, this is an issue of the executive branch taking away control of agencies that Congress has tasked with ensuring the safety of our air, food, and workplaces (among many essentials). Melberth summarized the situation neatly in his written testimony:

[The Bush administration has] delayed, diminished, or destoryed regulations that agencies are mandated to promulgate. There has been a sustained attack on scientific integrity – on the quality of scientific information, on the scientific expertise of agency professionals, and on the integrity of the scientific process. The tools have been manipulated and the executive order amendement just issued, coupled with the good guidance practices bulletin, have further established control of the regulatory process in the executive branch, and OIRA especially, at the expense of both congressional power and agency discretion.

He closes with some recommendations: that Congress explore the legality of the EO amendements and their implementation; that Congress provide oversight of OIRA to ensure that it does not create new standards or irresponsible requirements on agencies; and that Congress look at limiting agencies’ and OIRA’s spending on specific elements of the EO.

This hearing, and the related Judiciary Committee hearing that followed it, showed that some members of Congress are concerned about the situation. Those of us who care about agencies’ abilities to protect the public’s health encourage them to act on that concern.

Liz Borkowski works for the Project on Scientific Knowledge and Public Policy (SKAPP) at George Washington University’s School of Public Health and Health Services.