Kate Sheppard

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The Senate will hold a confirmation hearing next week for Gina McCarthy, President Obama's pick to head the Environmental Protection Agency in his second term. McCarthy, who is currently the assistant administrator for the EPA's Office of Air and Radiation, is expected to face some grilling from Senate Republicans who haven't been big fans of regulations, particularly when it comes to greenhouse gas rules. But the Senate might not be the biggest obstacle to strong new rules.

In a stinging critique at the Yale Journal on Regulation, one of the EPA's former top officials on climate change argues that the Obama White House has been the biggest impediment to tough regulations. Lisa Heinzerling served as the senior climate policy counsel at the EPA from January to July 2009 and as the associate administrator of the Office of Policy from July 2009 to December 2010. Heinzerling brought serious climate chops to the EPA; before joining the administration, she was one of the lead authors in the plaintiffs' briefs in Massachusetts v. EPA, the settled court case in which the US Supreme Court ruled that the EPA has the authority to regulate carbon dioxide emissions. She has since returned to her job as a law professor at Georgetown University.

Her piece points to the White House Office of Management of Budget —and its Office of Information and Regulatory Affairs (OIRA) in particular—as the place where tough regulations go to die. We've documented a number of proposed environmental rules have been sent to OMB for consideration and never again seen the light of day. Heinzerling points to several others that have been under "review" for years, including a list of "chemicals of concern" and rules about workplace exposure to harmful crystalline silica dust. In other cases, like new Food and Drug Administration rules on food safety, the rules were sent back from OMB significantly weakened.

It's often impossible to tell what happens to new environmental rules once they go into the OMB, which means the Obama administration is breaking its promises of transparency, Heinzerling argues. The problems at OMB also stem, she says, from an overemphasis on cost-benefit analysis for all new regulations. Cass Sunstein, the legal scholar who headed OIRA for most of Obama's first term before leaving last August, was a major proponent of this process of comparing the monetary costs and benefits of any proposed regulation. Using this to evaluate environmental regulations is a source of controversy, particularly for cases where the benefit of, say, not filling the atmosphere with greenhouse gases can be difficult to quantify.

I predicted at the time Heinzerling was tapped for the administration back in 2009 that cost-benefit analysis would be a major source of tension between EPA and OIRA. That certainly seems to be the case. I talked with Heinzerling this week about her piece and her evaluation of the Obama administration's approach to environmental regulation:

Mother Jones: How much of a barrier to getting good regulations has the OMB been under Obama?

Lisa Heinzerling: It's a huge barrier. From the moment a person at EPA thinks of the possibility of issuing a rule, they start to think, "Will OMB let us issue this rule?" It affects everything in rulemaking at the agencies. If they do get to the point where they decide to go ahead with the rule and propose it or issue a final rule, then it may well get stuck forever at OMB. In most case in this administration, no one knows that a rule is stuck, or why.

MJ: Does this lead to self-censorship at the agencies? Are they thinking, "Maybe we shouldn't be as aggressive on this rule as we think we need to be because OMB won't let it go through"?

LH: A lot. After [my piece] on this went up, a career staffer at EPA that I'd never met wrote to me and said, "We're constantly checking ourselves. We're constantly asking ourselves not, 'Is this the right thing for environmental protection?' but, 'How can we make this acceptable to OMB?'" Obviously that's just one person, but I saw this all the time.

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