Coal Tattoo

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We reported earlier this week that the Obama administration was going to run its EPA guidance on water pollution from mountaintop removal operations through the White House Office of Management and Budget for its approval.

But is this maneuver, which is sure to delay the guidance being finalized, legal?

Experts at the Center for Progressive Reform, a group which keeps an eye on OMB involvement in regulatory issues, isn’t so sure … In a post on the group’s blog,  Holly Doremus, a law professor at the University of California at Berkeley, outlined some serious concerns:

… Why is the White House really involved? Because since the mid-term elections it has been only too willing to bend to big-money attacks on regulatory agencies. In January, President Obama grabbed headlines with an op-ed in the Wall Street Journal promising to reduce regulatory burdens on business. He followed up with an Executive Order calling on federal agencies to make sure that future regulations impose the least possible burden and to review existing regulations with an eye to weeding out those that are “outmoded, ineffective, insufficient, or excessively burdensome.” The White House might as well have put up a sign on the door reading “Bring us your complaints about excessive regulation.”

That seems to be exactly what happened in this case. Environment and Energy News has posted a letter (subscription required) from West Virginia Democratic Congressman Nick Rahall to OIRA Administrator Sunstein asking that OIRA review the guidance to see if it should be issued as a rule and if EPA jumped through the right procedural hoops. The letter is dated March 29, 2011, just days before EPA announced that OMB will review its guidance. It refers to an earlier meeting between Rahall and Sunstein, so the response may not have been quite as instantaneous as that timeline makes it appear.

Just where OIRA gets the authority to review the guidance is unclear. President GW Bush had issued an executive order calling for OIRA review of guidance documents, but President Obama revoked that order shortly after taking office. Nor does OMB have some special expertise related to whether the EPA’s guidance is a new rule in disguise. OMB knows nothing about the nuances of the Clean Water Act; EPA has a far better understanding of the requirements of the statute and current regulations. It seems that neither legal authority nor expertise is needed to justify centralized review in this White House, however, so long as the political outcry is loud enough.

Of course, one issue here might be how a federal court eventually rules in the lawsuits brought by the mining lobby and friendly state regulators, alleging that the EPA guidance is really a regulatory change … stay tuned …