OMB Interference under Scrutiny in Congress

The White House Office of Management and Budget's review of federal agencies' draft regulations and scientific information was highlighted in two congressional hearings the week of May 5. The review process gives Office of Management and Budget (OMB) officials an opportunity to delay or undermine public health and safety standards. One hearing examined the constitutional implications of OMB review, the other the scientific implications.

On May 6, the House Judiciary Committee's Subcommittee on Commercial and Administrative Law heard complaints from witnesses about OMB's role in advancing the unitary executive theory through rulemaking.

Under the unitary executive theory, President Bush and conservative constitutional scholars have argued that the president has complete control over implementation of federal law and can ignore the input of Congress in doing so. Bush has used this rationale to dramatically expand the use of presidential signing statements and to ignore the opinions of Congress in his conduct of the war in Iraq.

White House involvement in agency rulemaking is also a battleground for interpretations of executive power, according to hearing witnesses. Congress often delegates regulatory decision making directly to the head of a federal agency. Because agency heads report to the president, the situation becomes murky when agency officials and OMB officials disagree about the substance of regulations.

Noted administrative law scholar and Columbia University law professor Peter Strauss attempted to clarify these situations by defining the president's role as one of oversight. "Our Constitution is very clear, in my judgment, in making the President the overseer of all the varied duties the Congress creates for government agencies to perform, including rulemaking," Strauss testified. "Yet our Constitution is equally clear in permitting Congress to assign duties to administrative agencies rather than the President. When it does, our President is not 'the decider' of these matters, but the overseer of their decisions."

Other witnesses identified several examples where the White House, specifically OMB, has intruded into the substantive work Congress has delegated to federal agencies. Curtis Copeland of the Congressional Research Service discussed the recent revision to the national air quality standard for ozone, or smog.

U.S. Environmental Protection Agency (EPA) Administrator Stephen Johnson had wanted to set a new, tailored standard that would provide greater protection from ozone to sensitive plant life during the summer months. However, OMB's Office of Information and Regulatory Affairs (OIRA) disagreed and pushed for Johnson to abandon his proposal. EPA and OIRA were unable to resolve their disagreement, and Bush was brought in to settle the dispute.

Bush sided with OIRA, even though the Clean Air Act explicitly gives the EPA Administrator the authority to set standards for ozone exposure. As Copeland pointed out, Johnson ultimately claimed responsibility for the decision not to set a summer standard. "[T]he preamble to the final rule that was published in the Federal Register on March 27, 2008, indicated that the EPA administrator made the final decision — although the correspondence between OIRA and EPA, as well as subsequent statements by the EPA administrator, indicate that the EPA administrator was adopting the President's and OIRA's position on the matter," Copeland testified.

Rick Melberth, director of regulatory policy for OMB Watch, discussed OMB's recent interference in a National Oceanic and Atmospheric Administration (NOAA) rule to protect the North Atlantic right whale. In that instance, White House officials have actively worked to undermine the scientific basis for NOAA's policy recommendation. (See related article in this issue of The Watcher.)

The ability of OMB to interfere in the science that informs regulatory decisions "give[s] the president unique and unparalleled power … to shape the substance of agency rulemakings — all behind the scenes," according to Melberth. He added, "In doing so, the implementation of agency statutory requirements may become secondary to the policies and priorities of the president as interpreted by the OIRA staff."

OMB review also drew attention in the Senate. On May 7, an oversight hearing of the Senate Environment and Public Works Committee examined the scientific basis for regulatory decisions at EPA. Throughout the hearing, panel members and witnesses pointed to OMB as a barrier to strong, science-based environmental and public health protections.

In one example, senators and witnesses discussed EPA's recent changes to its process for evaluating the toxicity of industrial chemicals. Under the revised process, EPA allows OMB to review draft versions of its scientific findings and allows OMB to solicit the opinion of other federal agencies or outside interests.

David Michaels, director of the Project on Scientific Knowledge and Public Policy at George Washington University, called OMB's involvement "a black hole" because the scientific studies "go in [to OMB] and they don't come out." A recent Government Accountability Office report concluded that OMB's presence in the chemical assessments can sometimes lead to years of delay.

Sen. Sheldon Whitehouse (D-RI) chided the agency for the lack of transparency associated with OMB's role in the chemical assessments. Although EPA claims the process is transparent, its communications with OMB are classified as deliberative and are not made available to the public. In the hearing, Whitehouse asked rhetorically, "What could be less transparent than secret meetings with OMB?"

Whitehouse also suggested that, unlike EPA, OMB officials do not carry the scientific qualifications requisite to review these assessments.

The Senate panel also heard from Francesca Grifo, the director of the scientific integrity program at the Union of Concerned Scientists (UCS). Grifo testified about a recent survey conducted by UCS that found widespread political interference in the work of EPA scientists. Of the 1,586 EPA scientists that responded to the UCS survey, nearly 100 explicitly identified OMB as a hindrance to scientific work at the agency. In her testimony, Grifo recommended, "The expanded reach of the Office of Management and Budget must be pushed back."

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