Tuesday, May 10, 2011

Bush's Rulemaking Czar Blasts EPA's Use of 'Guidance' - NYTimes.com

As businesses and states challenge U.S. EPA's new regulations on greenhouse gas emissions, coal mining and water pollution, they are putting increasing pressure on the agency's use of 'guidance' to explain the rules of the road.

Agencies have used guidance documents for decades to explain how they will interpret existing laws, often while they are working on new regulations. But some of the Obama administration's memos have been maligned by businesses, which say that the guidance documents are being used to change the rules without taking public comment or consulting with the rest of the administration.

That argument got support on March 22, 2011 from John Graham, an influential academic who was in charge of reviewing new regulations for the White House under President George W. Bush.

Agencies have tried to argue that guidance documents are innocuous because they are not final rules, Graham said yesterday at a U.S. Chamber of Commerce event on 'restoring balance to the regulatory process.' But those memos have been used during both Republican and Democratic administrations to skirt public comment and avoid triggering review by the White House, he said.

'The whole idea of guidance not being a rule -- there has to be an arrow shot right through the heart of that,' Graham said, adding that Congress should pass legislation 'to make sure that things that look like a duck and quack like a duck are a duck.'

Graham cited EPA's guidance for its new climate regulations, which tells state agencies how to decide whether new industrial plants are using the best available technology to cut down on emissions that are causing climate change.
The Environmental Council of the States (ECOS), which represents top officials from state environmental agencies, will consider a resolution on guidance during its spring convention next week, said Steven Brown, the group's executive director and a former state air official in Kentucky.

Though the organization does not yet have a formal position, Brown recently wrote a paper slamming EPA's handling of coal mining and water permits. The new administration should not be using guidance to speed along the rulemaking process, he told Greenwire during a recent interview.
Graham's own tenure at the White House was marked by frequent fights over regulatory policy.

Back then, Democrats and their allies complained that Graham's office seemed more interested in saving money for businesses than protecting the public from health and environmental threats. A supporter of strict cost-benefit analysis, Graham made enemies with the AARP after his office suggested putting a lower value on saving the lives of the elderly, based on the fact that they have fewer years left to live.

Graham is also a longtime critic of guidance documents. Two years into the George W. Bush administration, when Graham was administrator of the White House Office of Information and Regulatory Affairs, President Bush issued an executive order telling agencies to send major policy memos to Graham's office for review.

Now the head of Indiana University's School of Public and Environmental Affairs, Graham said yesterday that change in policy was prompted in part by memos that were coming from EPA. He recalled being summoned to speak with then-OMB Director Mitch Daniels, who is now governor of Indiana and is seen as a possible contender for the 2012 Republican presidential nomination.

The year was 2003, and Daniels said the Pentagon had complained about EPA's plans for cleaning up perchlorate, a component of rocket fuel that is linked to thyroid problems and can contaminate drinking water supplies. He asked Graham what his office was doing about it, but Graham did not know what Daniels was talking about.

'To make a long story short, I wasn't doing anything about it, because it was a so-called guidance document,' Graham said yesterday.

Democrats and supporters of new regulations attacked the executive order at the time, saying the White House was trying to slow down the regulatory process. But now that a Democrat is sitting in the White House, the tables have turned.

Soon after taking office, President Obama revoked the Bush-era executive order on guidance. It was replaced with a memo saying the White House reserves the right to review guidance documents.

And last month, EPA announced that it will reverse the last administration's decision and consider setting new federal drinking water standards for perchlorate (Greenwire, Feb. 2)

Now that Republicans have taken back the House, they are trying to turn back a tide of regulations that they describe as harmful to the economy. The effort is being led by business groups such as the U.S. Chamber of Commerce, the nation's top lobbying group in terms of spending.
Sen. Susan Collins (R-Maine) has tackled the issue by proposing an amendment to the small-business bill that is currently on the Senate floor. Her measure would make federal agencies do a cost-benefit analysis on guidance documents, but it has not gotten a vote so far.

The Collins amendment is one of several proposals to overhaul the regulatory process. Another bill from Rep. Geoff Davis (R-Ky.) and Sen. Jim DeMint (R-S.C.), called the 'REINS Act,' would make Congress approve all major regulations. A third suggestion from Sen. Mark Warner (D-Va.) would borrow a concept from pay-as-you-go budgeting and make agencies get rid of one outdated rule before putting a new one on the books.
By GABRIEL NELSON of Greenwire
The New York Times www.NYTimes.com
March 23, 2011

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