In the obscure world of federal rulemaking and administrative law, yesterday's gathering of progressives at American University was about as close as you could get to an old-fashioned revival meeting.
Grievances about the failures of the current regulatory system were aired, commitments to bring about change were reaffirmed and inspiring words were spoken.
"It is depressing, but the right attitude is to get your torch out and light it and march in the street," said Rena Steinzor, president of the left-leaning Center for Progressive Reform (CPR), which hosted the event.
And with the Senate confirmation looming for the man nominated to be President Obama's next regulatory czar, the tactics discussed yesterday to put pressure on the White House to fix the regulatory process may be put into action sooner rather than later.
Late last month, Obama nominated Howard Shelanski to be his next administrator of the Office of Information and Regulatory Affairs (OIRA) (E&E Daily, April 26). Earlier this week, the chairman of the Senate Homeland Security and Governmental Affairs Committee announced that he intended to begin that confirmation process in the near future (E&E Daily, May 14).
Many concerns that progressives have with the regulatory process these days stem from OIRA.
OIRA, which is part of the White House Office of Management and Budget, is charged with examining agency rules before they are enacted to determine, among other things, whether alternatives were considered and whether the costs and benefits of the proposed regulation were properly weighed.
But OIRA's efforts in recent years have worried and angered some public interest groups and liberals who say the office, through an opaque rule review process that pays little heed to statutory review timelines, has stifled federal rulemaking efforts to the benefit of big business.
By executive order, OIRA has 90 days to conduct its reviews, along with a possible 30-day extension. But as former U.S. EPA senior climate adviser Lisa Heinzerling pointed out yesterday, rules often "get stuck" at OIRA for much longer than that.
Of the 149 rules pending before the office as of yesterday, 86 have now been under review for more than 90 days.
"The frustrating thing is the process does not follow the executive order in almost any respect," said Heinzerling, who is now on the faculty at Georgetown University Law Center and a CPR fellow.
And when that happens, there's very little that agency officials can do, she said, "short of actually hitting the button to send a rule to the Federal Register in defiance of the many people in the White House who are saying no."
CPR and several public interest groups that call themselves the Coalition for Sensible Safeguards made it clear yesterday they will be working to highlight their concerns as the Shelanski nomination moves forward.
Shelanski, the current director of the Federal Trade Commission's Bureau of Economics and former chief economist of the Federal Communications Commission, is best known for his work in antitrust and telecommunications issues, so CPR and others say they are interested in learning more about his views on OIRA's role in the regulatory process.
In a blog post following Shelanski's nomination, Steinzor encouraged senators on the Homeland Security and Governmental Affairs Committee to ask "tough" questions about his view on federal rulemaking.
"For example, as OIRA Administrator, will Dr. Shelanski see it as [his] job to advance the public interest or to appease regulated industries?" she wrote.
She also encouraged members to push Shelankski to say whether he would respect "the clear 90-day time limits" that Executive Order 12866 places on the review process.
"We look forward to meeting Dr. Shelanski and doing our best to persuade him that a fundamental course correction at OIRA is vital," she wrote. "Without one, there will be more grim funeral services honoring lives lost unnecessarily in industrial catastrophes that escape a badly shredded safety net."
Say 'White House,' not 'OIRA'
During yesterday's panel discussion, Steinzor, Heinzerling and John Walke, the clean air and climate change director for the Natural Resources Defense Council, offered other ideas on how to pressure the White House to fix the current rulemaking system.
Among the suggestions Walke proposed was to simply stop referring to the Office of Information and Regulatory Affairs as OIRA and start referring to it as the White House.
"Since the office resides at the White House, we should refer to it as the White House," he said.
Walke believes that using the acronym OIRA only serves to distance Obama from the problem.
"People in Washington use acronyms far too much," he said. "If the acronym is NAACP, then that's entered the lexicon. But if it's OIRA, no one outside the Beltway knows what in the world you're talking about."
It is not unreasonable to ask people who work at the White House to live up to commitments that the president has made to the public and to the agencies, Walke said.
And besides, "they are vulnerable to that type of political criticism," he said.
Heinzerling said her time at EPA has led her to conclude that there is discomfort within the White House about how nontransparent the current process is and that therein lies an opportunity for progressives.
"I think there's discomfort about the deadlines not being met," she said. "I think there's discomfort about the large gap between what ... the executive order on regulatory review require and what the agencies and OIRA give us. I would exploit that as much as possible."
If rule reviews are past deadline, point that out, Heinzerling encouraged the audience yesterday. She urged those concerned with the process to keep an eye out for changes to final regulations that would not have been made if not for the White House's involvement.
"In this moment when I think we're stuck with this system that is imperfect, take advantage of that," she said, "because I don't think anybody's proud of those imperfections."
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