Obscuring regulation: How the Obama administration violates its own executive order

Lisa Heinzerling, professor of law at Georgetown and Senior Climate Policy Counsel to EPA Administrator Lisa P. Jackson from January to July 2009 (and a Defending Enterprise college classmate), rips the Obama administration to shreds over its entirely opaque approach to regulation. This is an attack from the left that even righties can love.

Few environmental statutes in this country put the President (or his aides in the White House) in charge of environmental decisions; most give the job to the EPA or, more specifically, its Administrator. Even fewer environmental statutes require rules to be evaluated according to cost-benefit analysis; most specify a different kind of decision-making framework for such rules.

Nevertheless, the Obama administration has continued and deepened a longstanding practice of White House control over EPA rules, with cost-benefit analysis as the guiding framework. OMB is the central player in this structure: it reviews, under a cost-benefit rubric, all agency rules that it deems “major” under executive orders mandating this review. EPA rules deemed major by OMB are not issued without OMB’s imprimatur. Thus does the OMB director become the EPA Administrator’s boss.

This result would be bad enough, given the tension between it and the legal structures governing environmental policy. But it turns out the OMB itself seems not to want to accept accountability for running U.S. environmental policy. In a new law review article by Cass Sunstein, the former head of the OMB office that acts as the White House’s regulatory gatekeeper, Sunstein insists that he actually didn’t have very much power. 2 In fact, he says, decisions about rules most frequently turned on other players in the White House, Cabinet heads outside the agency proposing the rule, or even career staff in other agencies or in the OMB itself. In Sunstein’s rendering, it appears that everyone is responsible for the shape and scope of environmental policy in this administration. Which means no one is accountable.

It only gets harsher from there. Any libertarian or small government conservative with even the slightest taste for schadenfreude will enjoy Lisa's essay. Of course, none of it will surprise readers who practice business, but imagine how disappointing all of this must be to a liberal law professor.