Lisa Heinzerling on CPRBlog {Bio}
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Why is the White House Blocking Rules on Energy Efficiency?

Cross-posted at ACSBlog.

“The easiest way to save money,” President Obama declared in his 2012 State of the Union address, “is to waste less energy.”  In his 2013 State of the Union address, President Obama took another step and issued “a new goal for America”: “let’s cut in half the energy wasted by our homes and businesses over the next twenty years.” The President also vowed that if Congress did not “act soon” to address climate change, he would “direct [his] Cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy.”

Such welcome sentiments! So sensible and right and good! But here is a puzzling fact: at the same moment President Obama was uttering these wise and welcome remarks, his White House was blocking rules to promote the very energy efficiency he was extolling.  Far from urging the Cabinet to come up with executive actions on climate, his own White House was blocking his Cabinet from taking executive actions on climate. That situation persists to this day.

To understand this rather startling state of affairs, we need some background about how the regulatory system works today. Congress has passed laws to increase in many different respects the energy efficiency of the “homes and businesses” the President talked about. Like most complicated contemporary laws, the laws on energy efficiency are implemented by an administrative agency, in this case the Department of Energy (DOE).  DOE writes rules that take the basic mandates given by Congress and give them shape; the agency specifies, for example, just how efficient new refrigerators and microwaves and lamps and buildings must be to meet Congress’s requirements.

Once DOE writes a rule, however, it does not simply issue it. Instead, the rule must first pass through a White House office that oversees the federal rulemaking process – the Office of Information and Regulatory Affairs, or OIRA. Under executive orders reaffirmed or issued by President Obama, no rule deemed significant by OIRA can be issued without OIRA’s approval. In the Obama administration, moreover, OIRA has increasingly become simply a portal into the political machinery of the larger White House. Rules go to OIRA and, from there, to the Domestic Policy Council, the White House economic offices, the White House Chief of Staff, even sometimes the President himself. (The former head of OIRA in this administration, Harvard law professor Cass Sunstein, documents (and lauds) this new reality in his recent book, Simpler: The Future of Government.)

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Who Is Running OIRA?

Reposted from RegBlog.

In his revealing new book about his nearly four years as President Barack Obama’s “regulatory czar,” Harvard Law School professor Cass Sunstein describes a striking moment:  “After I had been in the job for a few years, a Cabinet member showed up at my office and told my chief of staff, ‘I work for Cass Sunstein.’  Of course that wasn’t true – but still.” 

But still, indeed.  Sunstein’s book, Simpler: The Future of Government, makes clear just how much power the Administrator of the Office of Information and Regulatory Affairs (OIRA) wields in this administration.  As I have written elsewhere, Sunstein informs us that, as OIRA Administrator, he had the power to “say no to members of the president’s Cabinet;” to deposit “highly touted rules, beloved by regulators, onto the shit list;” to make sure that some rules “never saw the light of day;” to impose cost-benefit analysis “wherever the law allowed”; and to transform cost-benefit analysis from an analytical tool into a “rule of decision,” meaning that “[a]gencies could not go forward" if their rules flunked OIRA's cost-benefit test.

As Sunstein’s statements attest, the person who leads OIRA is, in the rulemaking domain, effectively the boss of members of the President’s Cabinet.  The head of OIRA determines which rules go to OIRA, what changes the rules will undergo before issuance, and indeed whether some rules will be issued at all.  Rules that make OIRA’s “shit list,” to use Sunstein’s term, simply stay at OIRA indefinitely. Twenty-four of the 149 rules under review as of April 26, 2013, have been at OIRA since 2011.  Three rules have been there since 2010.  Three important rules on food safety, required by legislation signed into law by President Obama himself, have been trapped at OIRA for many months.  A whole group of energy efficiency rules has languished at OIRA for years.  None of these rules will see the light of day without OIRA’s say-so.

It is a matter of some importance, then, to know who is running OIRA now that Sunstein has left. 

By law, the Administrator of OIRA must be nominated by the President and confirmed by the Senate.   Since last August, when Sunstein returned to Harvard, OIRA has lacked a confirmed administrator. For several months after Sunstein’s departure, Obama appointee Boris Bershteyn served as acting administrator of OIRA.  But because no one was nominated for the position within 210 days of Bershteyn beginning his service as acting administrator, the Federal Vacancies Reform Act of 1998 prevented him from serving any longer. Since mid-March, therefore, Dominic Mancini – a career economist at OIRA – has been leading OIRA.

One might imagine that a career civil servant operating out of an obscure White House office would give a great measure of deference to rules forwarded by the heads of agencies, who were nominated by the President and confirmed by the Senate.  But, it appears, one would be wrong.

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Antibiotic Resistance and Agency Recalcitrance

Eighty percent of the antibiotics used in this country are given not to humans, but to animals destined for the human food supply.  Most of these antibiotics are given to the animals not for the purpose of treating active infections, but for the purposes of promoting growth and preventing infection in the microbe-rich environment of the modern factory farm.  For over 40 years, the Food and Drug Administration (FDA) has been collecting evidence that this agricultural practice contributes to the development of antibiotic-resistant infections in the human population. Based on such evidence, in fact, the agency proposed to withdraw its prior approvals for two antibiotics used in animal feed due to the risks they posed to human health. The agency promised to hold hearings on the matter. That was over 35 years ago. On Friday, the future of this issue will be debated in oral arguments in a key case before the Second Circuit Court of Appeals.

In the last 35 years, the FDA has continued to accumulate evidence of the link between administering subtherapeutic doses of antibiotics to food animals and the development of antibiotic-resistant infections in the human population. Indeed, the agency itself has repeatedly acknowledged the link between herd- and flock-wide administration of antibiotics to food animals and the development of antibiotic-resistant disease in humans. But still it has done nothing to take the drugs off the market.  Not surprisingly, after watching the FDA sit still for decades, public health and environmental organizations eventually grew restless, and petitioned the agency to hold the hearings and to withdraw the relevant approvals.

In 2011, almost 35 years after finding that using antibiotics in animal feed was linked to antibiotic resistance in humans, the FDA finally answered the petitions. It denied them.  The agency explained -- without a trace of irony -- that the process for withdrawing these approvals would simply take too long and that the agency was thus instead encouraging the animal feed industry to take voluntary measures to address the overuse of antibiotics. The FDA argued that the process for withdrawing approvals would take too long because the agency thought itself legally bound to offer formal, trial-type hearings on the question whether the relevant antibiotics were "safe" within the meaning of the relevant statute, the Food, Drug and Cosmetic Act.

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