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Lisa Heinzerling, Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House, Pace Envtl. L. Rev. (forthcoming), available at SSRN.

Ever wondered what it is like—really like—to be an agency official confronting review by the Office of Information and Regulatory Affairs (OIRA) of your agency’s rule? Readers of JOTWELL’s administrative law blog are disproportionately likely to be part of the small group that wonders about such things, and this post has some very good news for them.

Surely, the best way to find out what it is really like to run a rule through OIRA would be to become an insider, serving as a high-ranking official at a major rulemaking agency. Most of us will never have that option. Fortunately for outsiders, a leading administrative law scholar, Professor Lisa Heinzerling of Georgetown University Law Center, did. She left academia for two years to serve as Senior Climate Policy Counsel to EPA Administrator Lisa Jackson from January to July 2009 and then as Associate Administrator of the Office of Policy from July 2009 to December 2010. Now back in the academic fold, she has written a fascinating account of the way that centralized White House review has affected agency rulemaking during the Obama administration.

Inside EPA begins by concisely telling the story of the evolution of centralized executive review from the Nixon through the Obama administrations. A theme of running through this history is how OIRA’s informal, practical power can exceed the limitations that appear on paper in the governing executive orders. For instance, responding to criticisms of President Reagan’s EO 12,291, President Clinton imposed a variety of seemingly strict transparency and deadline requirements on OIRA in EO 12,866. There is less here than meets the eye, however, because OIRA has “taken the position that only when a regulatory action is sent to OIRA through official channels—which include a computer system used for the purpose of facilitating the transfer of rules between the agencies and OIRA—do the transparency requirements of EO 12,866 kick in.”  (P. 9.) This stance leaves OIRA free to intervene earlier in the rulemaking process without leaving fingerprints. (P. 9.) It also gives a rationale for OIRA’s infamous refusal during the Bush II administration to upload EPA’s draft endangerment finding on greenhouse gases. After all, “[i]f OIRA does not upload the package, … it is as if it was never sent to OIRA; no clock begins ticking, and the package does not does not appear on OIRA’s website listing rules under review.” (P. 10.) EO 12,866 might look like it addresses problems of OIRA delays and transparency. It doesn’t.

The heart of Inside EPA is a section entitled, “The Common Law of 13,563.” In it, Professor Heinzerling explains how, to her mind, centralized executive review has actually worked during the Obama administration. She divides her account of the “common law” into five subsections, each asks and attempts to answer a different question. The questions follow—as well as some highlights from her answers.

Who Decides? Professor Heinzerling reports that, from her perspective, “it was often hard to tell who exactly was in charge of making the ultimate decision on an important regulatory matter.” (P. 14.) She notes that Professor Cass Sunstein, former administrator of OIRA and administrative-law superheavyweight, has described OIRA as an “information aggregator” that collects from a variety of sources across the White House and the broader executive branch. On this view, resistance to a rule could come from many different sources—it could be the Chief of Staff; it could be another agency head. Sitting at EPA, Professor Heinzerling couldn’t tell—which, on a moment’s reflection, is pretty remarkable. (P. 15.)  Her general sense, however, was that OIRA wielded much more clout than the mild-mannered “information aggregator” description suggests.  Along these lines, she cites Sunstein’s remark in his recent book, Simpler: The Future of Government, that he had the power to throw “highly touted rules, beloved by regulators, onto the shit list.” (P. 16, citing Simpler at 6.) “Shit,” of course, might lie in the eye of the beholder.

What Is Reviewed? OIRA reviews whatever it wants to review. (P. 18.)

Why Do Rules Fail? It can be hard to tell, but Professor Heinzerling identifies several possibilities. A rule might fail because it creates more costs than benefits on a formal, monetized cost-benefit analysis. (P. 22.) For those who think that excessive reliance on this type of analysis is a very bad idea—and Professor Heinzerling has long been a strong critic—this possibility is naturally very troubling. Another possibility is that OIRA determines that the rule is flat-out wrong “on the merits.” (P. 24, citing Simpler at 27.) But exactly who is in a better position to determine the “merits” of an EPA rule? EPA or OIRA?

When Does Review End (and Begin)? Forget the deadlines of EO 12,866. Agencies can, ahem, “ask” for indefinite extensions of OIRA’s deadlines. And OIRA asks agencies to ask for them—and the agencies, knowing what is good for them, say “yes.” (P. 27.)

What Are We Told? “OIRA follows, and allows the agencies to follow, almost none of the disclosure requirements of EO 12,866.” (P. 29.)

Professor Heinzerling closes with some pointedly normative observations and a simple, partial prescription for improvement. As applied, the regime of EO 12,866 and EO 13,563 raises serious problems of transparency, misallocation of power, and accountability. OIRA could alleviate many of these problems by following the letter and spirit of the EOs themselves. (P. 35.) Left unsaid, perhaps as an exercise for the reader, is the problem of why OIRA does not do so—or why somebody with real power over this agency does not insist that it do so.

(P.S. We now have Professor Heinzerling’s account of OIRA review from an EPA perspective, and we have Professor Sunstein’s account of OIRA review in works such as Simpler. The former is a noted critic of OIRA-style cost-benefit review; the latter is one of its greatest proponents. Maybe next time, as an experiment, Professor Heinzerling could run OIRA and Professor Sunstein could serve at EPA.)

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Cite as: Richard Murphy, What Does It Feel Like To Have OIRA Review Your Rule?, JOTWELL (January 15, 2014) (reviewing Lisa Heinzerling, Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House, Pace Envtl. L. Rev. (forthcoming), available at SSRN), http://adlaw.jotwell.com/what-does-it-feel-like-to-have-oira-review-your-rule/.