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Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety, and the Environment

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Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety, and the Environment Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety, and the Environment By CPR Member Scholar Rena Steinzor, CPR Intern Michael Patoka, and CPR Policy Analyst James Goodwin Center for Progressive Reform CENTER FOR PROGRESSIVE REFORM WHITE PAPER #1111 November 2011 About the Center for Progressive Reform Founded in 2002, the Center for Progressive Reform is a 501(c)(3) nonprofit research and educational organization comprising a network of scholars across the nation dedicated to protecting health, safety, and the environment through analysis and commentary. CPR believes sensible safeguards in these areas serve important shared values, including doing the best we can to prevent harm to people and the environment, distributing environmental harms and benefits fairly, and protecting the earth for future generations. CPR rejects the view that the economic efficiency of private markets should be the only value used to guide government action. Rather, CPR supports thoughtful government action and reform to advance the well-being of human life and the environment. Additionally, CPR believes people play a crucial role in ensuring both private and public sector decisions that result in improved protection of consumers, public health and safety, and the environment. Accordingly, CPR supports ready public access to the courts, enhanced public participation, and improved public access to information. CPR is grateful to the Public Welfare Foundation for funding this white paper. This white paper is a collaborative effort of the following individuals: Rena Steinzor is a Professor at the University of Maryland Francis King Carey School of Law and the President of the Center for Progressive Reform. Michael Patoka is a law student at the University of Maryland Francis King Carey School of Law and an intern at the Center for Progressive Reform. James Goodwin is a Policy Analyst with the Center for Progressive Reform. We thank Suzann Langrall, Coordinator for the Environmental Law Program at the University of Maryland Francis King Carey School of Law, for helping to gather and organize the data central to this report. Acknowledgments For more information about the authors, see page 89. The Center for www.progressivereform.org Progressive Reform For media inquiries, contact Matthew Freeman at [email protected] is grateful to the or Ben Somberg at [email protected]. Public Welfare Foundation for its For general information, email [email protected]. generous support of CPR’s work. © 2011 Center for Progressive Reform. Behind Closed Doors at the White House Center for Progressive Reform Page 1 Contents Executive Summary .........................................................................................................4 Key Findings ......................................................................................................................4 A Word about EO 12,866 ................................................................................................10 Recommendations for Reform .........................................................................................11 Analysis .........................................................................................................................14 Who: The Kinds of Interest Groups Represented at OIRA Meetings ............................14 Background: A Process Dominated by Industry Participation at All Stages ......................14 Results .............................................................................................................................15 At a Glance: The Kinds of Groups Represented at OIRA Meetings ..............................15 A Deeper Look: Levels of Interest-Group Participation in OIRA Meetings ..................19 How OIRA’s Meeting Policy Ensures Industry Dominance ..............................................22 Imbalance in Resources .................................................................................................22 Information Costs of Lobbying OIRA ..........................................................................24 OIRA’s Reputation as a Non-Neutral Forum ................................................................25 The Implications of Interagency Participation in OIRA Meetings ....................................26 What: The Kinds of Rules Discussed at OIRA Meetings ..............................................28 The Most Heavily Discussed Rules ...................................................................................28 The Disproportionate Targeting of EPA Rules ..................................................................29 Background: OIRA’s Historic Fixation with EPA .........................................................29 Results ..........................................................................................................................30 How OIRA’s Meeting Policy Impairs EPA Rulemaking .................................................32 Excessive Interference in Rules That Are “Not Economically Significant” .........................33 Background: The Scope of OIRA’s Reviewing Authority ..............................................33 Results ..........................................................................................................................35 When: The Timing of OIRA Meetings .........................................................................38 The Stages of the Rulemaking Cycle .................................................................................38 Background: The Problem of Pre-Proposal Discussions with Stakeholders ...................38 Results ..........................................................................................................................39 Undermining the Agencies’ Autonomy in the Rule’s Formative Stages ..........................40 OIRA’s Formal Review Period ..........................................................................................41 Background: OIRA’s Preference for “Informal” Reviews ...............................................41 Results ..........................................................................................................................43 Why: The Purpose and Impact of OIRA Meetings .......................................................50 Delaying the Publication of Agency Rules ........................................................................50 Background: The Problem of Rulemaking Delay .........................................................50 Results ..........................................................................................................................51 The Relationship between Meetings and Lengthy Reviews ............................................52 Changing the Substance of Agency Rules .........................................................................53 Background: Inadequate Documentation of Changes Made During Review ................53 Results ..........................................................................................................................55 OIRA as a One-Way Ratchet That Only Weakens Agency Rules ......................................60 Behind Closed Doors at the White House Page 2 Center for Progressive Reform How Industry’s Dominance of the Meeting Process Translates into Influence ................61 Conclusion ...................................................................................................................62 Recommendations for Reform ......................................................................................63 Transparency .................................................................................................................64 Level Playing Field ........................................................................................................64 Timeliness ....................................................................................................................64 Economically Significant Rules .....................................................................................64 Appendix A: Text of EO 12,866 ...................................................................................65 Appendix B: Methodology ...........................................................................................75 Inadequate Transparency of OIRA Meeting Information .................................................76 Categorization of Meeting Participants ............................................................................79 Endnotes .......................................................................................................................82 Behind Closed Doors at the White House Center for Progressive Reform Page 3 Tables Table 1. The Kinds of Groups Involved in the OIRA Meeting Process ................................15 Table 2. The “Top 30” Groups Represented in the Most Meetings with OIRA ...................18 Table 3. A Breakdown of the Groups Represented by Lawyers, Consultants, and Lobbyists 19 Table 4. The “Top 10” Federal Entities Represented at the Most Meetings ..........................26 Table 5. The “Top 20” Rules That Were the Subject of the Most Meetings with OIRA .......28 Table 6. Some Examples of Misspellings in OIRA Meeting Records ...................................77 Table 7. Some Examples of Wording Differences between Meeting Topics and Rule Titles..78 Figures Figure 1. How OIRA’s Review Fits
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