A Failure to Govern: Bush's Attack on the Regulatory Process

By David Michaels

OMB Watch has just released its newest report on the recent changes President Bush has made to the federal regulatory process. The report A Failure to Govern: Bush's Attack on the Regulatory Process explains in clear, compelling language how two arcane but pernicious documents, one amended the other new, threaten to significantly reduce the ability of government agencies to protect our health and environment. The two documents are:

Executive Order 13422 (amending the way the White Houseâs Office of Information and Regulatory Affairs (OIRA) reviews the rules issued by EPA, FDA, OSHA, MSHA and other agencies; and

OIRAâs Final Bulletin for Agency Good Guidance Practices, which dictates the policies and procedures agencies must follow internally when formulating guidance documents.

Hereâs the conclusion of the report:

The Bush administration has further reduced public protections by putting special interestsâ concerns above the general publicâs concerns. For six years, administration appointees have manipulated how agencies use regulatory tools such as cost-benefit analysis and peer review. They have delayed, diminished or destroyed regulations Congress mandated agencies to promulgate.

The administration has consistently attacked the quality of scientific information, the scientific expertise of agency professionals, and the integrity of the scientific process at large.

The executive order amendments, coupled with the good guidance practices bulletin, have further concentrated control of the regulatory process in the White House, especially in OIRA, at the expense of both the separation of powers and agency discretion.

By bringing agency guidance documents under OIRA review, these amendments to the E.O. will lead to further delay of regulatory implementation. They will place the technical interpretations of legislative mandates not with the agencies but with OIRA â a clear usurpation of agenciesâ authority.

The real loser, however, is the public. In the end, less regula¬tion means less protection. Instead of a regulatory cop on the beat, we have none. Instead of addressing regulatory gaps, we operate based on whether these gaps have politic sequences. Unfortunately, there are real consequences from these actions and inactions for public protections. Our government should be doing more, not less, to protect the public. The amended E.O. and guidance bulletin move the regulatory process in the wrong direction.

Every year, more than 40,000 people die on our nationâs highways. Foodborne illnesses kill an estimated 5,000 and sicken 76 million. Nearly 6,000 workers die as a result of injury on the job, with an additional 50,000 to 60,000 killed by occupational disease. And asthma â linked to air pollution â is rising dramatically, afflicting 17 million, including six million children.

The amendments and the guidance bulletin go into effect in late July, and only then will we be able to gauge the full impacts of the changes. In the meantime, look for OIRA to issue guidance to agencies clarifying the new amendments, probably by amending Circular A-4, Regulatory Analysis, which is the current directive used by the agencies. We urge Congress to give tough scrutiny to any new directive OIRA releases and continue oversight of these important regulatory issues.

There is real danger to our constitutional system from this arrogation of power. Equally significant, in our opinion, is the real danger presented to the American public from the delay or refusal to regulate dangerous activities.

The press doesnât cover changes in arcane rules on how agencies consider and issue regulations with the same fervor involved with covering the firing of US Attorneys (to say nothing of its coverage of Anna Nicole Smith or Britney Spears). So thanks to OMB Watch for this fine report.

David Michaels heads the Project on Scientific Knowledge and Public Policy (SKAPP) and is Professor and Associate Chairman in the Department of Environmental and Occupational Health, the George Washington University School of Public Health and Health Services.