President Obama's new regulatory agenda on climate change will face inevitable legal and political challenges. But in all fields — not just energy and the environment but health, safety and labor — one of the most formidable obstacles to reform has been the administration's own resistance to finalizing new rules, even when it has expressed support for the causes those rules would address.
Recently, 136 draft rules from executive agencies were under review at the White House's Office of Information and Regulatory Affairs, or OIRA, a branch of the Office of Management and Budget. Of them, 72 have been held up for longer than the 90-day limit set by executive order, and of those, 38 have languished for more than a year, including 24 from 2011 and three from 2010.
The backlog has more to do with politics than economics. In 2012, a presidential election year in which Republicans hammered the administration for its allegedly "job killing" regulations, the number of rules receiving final approval hit a historic low (in data going back to 1993), while the time OIRA took to vet proposals hit new highs.
Even though Mr. Obama won, delays persist. It is as if the White House were still driven by election-year motives: defuse Republican taunts and placate industry. Or worse, its commitment to new rules is suspect.
Since OIRA's creation in 1980, the office has been a force for ensuring that regulations reflect presidential priorities. It can advance rules, with or without change; return them to agencies for reconsideration; or urge agencies to withdraw them. Through most of its history, the office has been used to advance antiregulatory aims, often by emphasizing the burdens rather than the benefits of regulation. Under Mr. Obama, OIRA has largely continued to dwell more on costs than benefits, even as executive agencies have proposed new rules to protect the public.
The result has been an attenuated process that gives administration officials cover for their political reluctance to advance rules or their substantive opposition to them. Faced with such criticism, the White House can point to rules that have been moved along in the process. It can also cite completed rules, like important ones on toxic emissions from power plants, fuel economy and sulfur in gasoline. But that does not excuse stranding dozens of others in the purgatory of OIRA, including:
FOOD SAFETY In January 2011, Mr. Obama signed a major food-safety law. But three rules to implement the law, submitted to OIRA by the Food and Drug Administration in November 2011, are still not completed. Two of them, on produce safety and food-related illness prevention, got preliminary clearance from OIRA in January, which allows the F.D.A. to resume work on them before resubmitting them to OIRA for final review. A third rule, to enhance the safety of imported food, has not budged.
LABOR PROTECTIONS A Labor Department proposal to grant home care workers basic wage-and-hour protections — lauded by Mr. Obama in December 2011 — wasn't submitted to OIRA until January of this year, and has not been heard of since. Another proposal, to impose new standards for exposure to carcinogenic silica dust at construction sites, has been held up since February 2011.
ENERGY AND ENVIRONMENTAL STANDARDS Among the Energy Department proposals bottled up at OIRA is one submitted in September 2011 to substantially reduce harmful emissions from industrial freezers. Among delayed Environmental Protection Agency proposals is one sent to OIRA in February 2012 to improve protections for streams and wetlands.
In April, the Senate confirmed Mr. Obama's nominee to be director of the O.M.B., Sylvia Mathews Burwell, a former executive at the Walmart Foundation. Last week, senators confirmed the next head of OIRA, Howard Shelanski, the top economist at the Federal Trade Commission. Ms. Burwell and Mr. Shelanski have pledged to make regulatory reviews more timely. But that's not enough. OIRA also needs to be more transparent about the changes it makes to agencies' draft rules and why — allowing the public to evaluate whether the White House's involvement has improved or weakened the final rules.
At the end of the day, what the public needs most is not just a more timely and transparent review process but a president unafraid of Republicans or corporate interests and determined to enact his regulatory agenda.
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