Congress vs. the White House on Regulatory Agencies

The Bush administration isnât the first to expand executive branch influence over the activities of federal regulatory agencies (like FDA, EPA, and OSHA), but it has taken the practice to a new level. Now that the Democrats are controlling Congress, though, moves by the White House Office of Management and Budget (OMB) that would erect more hurdles to regulation are facing opposition from the legislative branch.

Back in January 2006, the OMBâs Office of Information and Regulatory Affairs (OIRA) issued a draft bulletin that laid out a new risk assessment protocol for federal agencies. The National Research Council reviewed the bulletin, found it to be fundamentally flawed, and recommended that it be withdrawn. The bulletin appeared to have died â until Susan Dudley, who received a recess appointment as OIRA head last month, suggested in an interview that she wants to move forward with it.

Senators Jeff Bingaman of New Mexico and Joseph Lieberman of Connecticut have written to OMB Director Robert Portman to request that OMB withdraw the proposed risk assessment bulletin. In their letter (PDF), they list some of the problems that the NRC identified (including a one-size-fits-all approach to a wide range of regulatory activities and a definition of âadverse effectâ that may be too restrictive to prevent harmful exposures), and conclude:

In summary, the proposed guidance appears to increase the burden of risk assessments, inject political considerations into the risk assessment process, and make it more difficult to issue regulations to protect our citizens. Finalizing the proposed OMB guidance would impede federal agenciesâ ability to develop public health and environmental protections, promote public safety, encourage good business practices, improve consumer protections, and efficiently use taxpayer funds.

In a similar vein, some members of Congress have also expressed concern about an amended executive order that will give OIRA additional authority over federal regulatory agencies, create new requirements for the agencies, and subject more of their work to these requirements. (See this page for background and additional posts on the executive order.) In February, the House Committee on Science and Technology Subcommittee on Investigations and Oversight and the House Judiciary Committee held hearings on the executive order and heard from several witnesses about the kinds of regulations that could be stalled or impeded under it.

Congress has tasked the federal regulatory agencies with protecting our air, food, workplaces, and other essentials, so any White House moves that hobble this work can be seen as an attack on the legislative branchâs authority. In his testimony before the Subcommittee on Investigations and Oversight, Rick Melberth of the watchdog group OMB Watch recommended (PDF) that Congress explore the legality of the EO amendments and their implementation, provide oversight of OIRA to ensure that it does not create new standards or irresponsible requirements on agencies, and look at limiting agenciesâ and OIRAâs spending on specific elements of the EO.

Thereâs a limit to how much Congress can do about OMB activities, but at least theyâre not letting this executive grab at regulatory agency control go unopposed.

Liz Borkowski works for the Project on Scientific Knowledge and Public Policy (SKAPP) at George Washington Universityâs School of Public Health and Health Services.