"Behind Closed Doors" Reports on Secret Regulatory Process

November 30, 2011

New research by a top liberal think tank shows the Obama administration is as bad as the Bush administration when it comes to secret meetings with industry to weaken environmental health and safety regulations.

The report, "Behind Closed Doors," by the Center for Progressive Reform (CPR) looked at public records on 1,080 meetings held in the decade between October 2001 and June 2011 between the White House Office of Management and Budget (OMB) and lobbyists from various interest groups. The results paint a picture of systematic circumvention of the law that is supposed to govern federal regulations, massive corruption of safeguards for environmental health, and a stealthy refusal to disclose President Obama's betrayal of the environmental promises he campaigned on in 2008.

The use of OMB's Office of Information and Regulatory Affairs (OIRA) to undermine the integrity of the rulemaking process is actually decades old. The 1946 Administrative Procedure Act requires federal rulemaking to be done in the open and on the record. But various laws and executive orders since then have given OIRA final approval of most regulations issued by federal agencies. That gave industry lobbyists an opening to meet secretly with OIRA to weaken or kill proposed regulations they didn't like, after the regulations had been worked out by the agencies in formal public proceedings. The lobbyists often represented groups that had given major cash to presidential campaigns. The corruption got so bad that President Clinton in 1993 issued an executive order (EO 12866) that required OMB meetings and contacts to be logged and published, although their details remained secret.

OMB's logs are published online (although not easy to access), and that information gave CPR the toe-hold it needed to do its analysis. As summarized by University of Maryland law professor Rena Steinzor, principal author of the study and president of CPR, its findings were stunning:

"Obama's OIRA changes more rules than Bush’s did."
"Industry dominates the OIRA meetings process."
"OIRA meetings correlate with changes to rules."
"OIRA is obsessed with the EPA."
"OIRA routinely misses deadlines, stalling public health and safety protections."
"OIRA ignores public disclosure requirements."
"OIRA ignores the limitations on its reviewing authority."

"Centralized White House regulatory review," Steinzor wrote, "shoves policymaking behind closed doors, wastes increasingly limited government resources, confuses agency priorities, demoralizes civil servants, and, worst of all, costs the nation dearly in lost lives, avoidable illness and injury, and destruction of irreplaceable natural resources."

The CPR study is important to reporters covering the environment for two reasons. First, White House regulatory review focuses on environmental issues disproportionately. And second, the White House in the year since the 2010 election has embarked on a regulatory rollback meant to forestall the far more radical one threatened by House Republicans.

Theoretically, the disclosure requirements in EO 12866 ought to discourage bald efforts by OIRA to ignore the public interest. In addition to the communication logs, for example, EO 12866 requires that "After the regulatory action has been published in the Federal Register or otherwise issued to the public ... OIRA shall make available to the public all documents exchanged between OIRA and the agency during the review by OIRA under this section."

But in response to such disclosure requirements, CPR notes, OIRA has developed an elaborate process of "informal review" of regulatory proposals, causing them to be altered to OIRA's liking BEFORE they are publicly proposed, and effectively exempting from disclosure the interactions between OIRA and the agency.