President Bush Expands Influence Over Regulatory Agencies

President Bush Expands Influence Over Regulatory Agencies
By Janet Pelley
Environmental Science and Technology Online
Wednesday 11 April 2007

Scientific assessments by environmental agencies could be delayed.

The Bush Administration's campaign for regulatory reform has now taken aim at guidance documents, a potpourri of messages from federal agencies that tell businesses how to implement regulations. A new directive from President Bush orders agencies to submit significant guidance documents for review by the White House Office of Management and Budget (OMB). It's uncertain how broadly OMB will interpret its new authority. Yet the directive set off a firestorm of alarm among environmental and public-health advocates, who say that an aggressive White House could impede or change agency guidance.

Executive Order 13422, issued by President Bush on January 18, 2007, is accompanied by OMB's Final Bulletin for Agency Good Guidance Practices. These two documents boost White House control over a wide range of regulatory activities.

During the Bush Administration, OMB has often operated under the public radar by issuing documents that attack environmental science; it appears to be the White House's favorite approach toward weakening environmental and public-health regulations, says David Michaels, an epidemiologist at George Washington University. "This was clearly written to target risk assessments by the EPA," Michaels says.

The new order fits this pattern that includes a draft bulletin proposing overhauls to agency risk assessments, issued in 2006, and the 2003 guidelines for agencies on how peer review of regulatory science should be conducted, critics say.

Beginning in July, federal agencies will have to prove the need for new regulations on the basis of specific failures of the free market, such as lack of competition preventing the provision of safe alternatives to toxic substances. Each agency head must designate a political appointee within the agency to control the writing of new rules.

Environmental advocates say they are concerned that the new order will significantly slow down EPA's work. "The bulletin could be used to interfere with chemical assessments for EPA's Integrated Risk Information System (IRIS) and the National Toxicology Program's Report on Carcinogens," says Jennifer Sass, a senior scientist with the Natural Resources Defense Council, an advocacy group. OMB has already taken from the IRIS staff at EPA the assessments for formaldehyde, ethylene oxide, and trichloroethylene, Sass says.

"We're very concerned that this new OMB initiative may prevent that information from coming out, or coming out as the most robust scientific assessment by the agency experts," Sass says. IRIS, a database that documents human health effects, is a tool used worldwide to assess a chemical's toxicity. The executive order is part of a trend that creates opportunities for OMB to block regulations and strip protections for children's health, Sass adds.

The Bush Administration has not explained why the executive order was needed, a point underscored by a report by the Congressional Research Service presented at one of two House of Representatives hearings in February. That left business leaders, including William Kovacs, vice president of the U.S. Chamber of Commerce, to offer their interpretations of the president's order.

The move was justified, because some guidance documents have had the power and economic impact of rules yet have escaped the public scrutiny required for rulemaking, Kovacs said when testifying before Congress. Alarms raised over the executive order are "much ado about nothing," says Dan Troy, chair of the American Bar Association (ABA) Section of Administrative Law and Regulatory Practice. The two documents will increase accountability and transparency and are just what the ABA recommended, he says.

Guidance documents are not legally binding and can include internal memos, letters to the regulated community, and speeches. They are written by agency staff members, who are often well versed in the requirements of laws concerning the environment and public health. But the new order and directive could be interpreted to apply to any document that is not a rule but that is used in regulatory policy and that is normally developed at the agency level by scientists. This would result in documents being written instead by economists and lawyers at OMB, critics point out.

"The executive order could be a backdoor way of implementing OMB's risk assessment bulletin that the National Academy of Sciences recently rebuked," says Bob Shull, deputy director for auto safety and regulatory policy at Public Citizen, an advocacy group. The bulletin was designed to standardize risk assessments conducted by agencies.

Congress has not signaled how it intends to address its concerns over the action, but a new administration could easily revoke the order, says Stuart Shapiro, a former analyst at OMB's Office of Information and Regulatory Affairs.