Is OMB review of EPA water quality guidance legal?

April 7, 2011 by Ken Ward Jr.

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 …


7 Responses to “Is OMB review of EPA water quality guidance legal?”

  1. Moderate says:

    Good grief. Let me understand this. Someone is arguing that the President via OMB is not authorized to have input on another of his own agencies? So, a President isn’t allowed to have input on what one of his own agencies does. That is so absurd it is beyond discussion. What you’re saying, or really advocating, is that EPA should have unfettered ability to do whatever it wants whenever it wants. And, that’s precisely the problem we find ourselves in now, an EPA that has done whatever it wants with virtually no accountability.

  2. mayflyguy says:

    I don’t think the arguement is really that the OMB doesn’t have authority, but rather that they do not have the expertise (both legal and scientific) to say if the guidance was appropriately applied. And I believe what Ken Ward is saying is that this hasoften been used in the past to get around rules and regs that were not popular with those who have great political influence.

  3. FactsFirst says:

    Moderate is right on point. Mayflyguy you correctly point out that the professor is also suggesting no expertise, but this law professor maintains both–suggesting that OMB–part of the White House–has no legal authority to review (wrong) and no expertise (debatable) . Wow–where does this professor teach–Berkley? Hope she is not teaching any courses on constitutional or administrative law. Frankly, the professor’s arguments at bottom question the authority and ability of OMB to review any policies or rules by any agency. Didn’t a federal judge already suggest that EPA likely went beyond the pale in its guidance and that the guidance should have been done by rulemaking? Perhaps the professor wishes to debate whether that judge has the “legal authority or expertise” to make that decision since presumably the judge doesn’t have what the professor calls an appreciation of the “nuances of the Clean Water Act”!

  4. Common Sense says:

    Moderate and FactsFirst, I want to say very well spoken and I agree with you 100%!

  5. Ken Ward Jr. says:

    Common Sense, Moderate and FactsFirst,

    Yes … as mentioned in my post, an issue that wasn’t really addressed by Holly Doremus was the judge’s ruling (http://blogs.wvgazette.com/coaltattoo/2011/01/18/breaking-news-court-ruling-in-coal-industry-case-over-epa-crackdown-on-mountaintop-removal/ ) in the case brought by the National Mining Association.

    Regardless, the Center for Progressive Reform follows OMB/OIRA issues very closely, and I thought Coal Tattoo readers would appreciate their perspective on this matter. And mayflyguy makes an on-point observation about what has resulted previously when OMB/OIRA have gotten involved in efforts by government agencies to protect the environment, public health, and worker safety.

    Ken.

  6. Moderate says:

    Well, here again, what you seem to be advocating is for the EPA to be able to autonomously function without any oversight by the President’s own agency. Is EPA some higher body that should operate above the watch of the public or its leaders? That is all just patently absurd for any President to cede that kind of power to an entity that can be (and has been) prone to functioning counter to the best interests of public policy.

  7. FactsFirst says:

    Moderate let’s not shoot the messenger. Ken was just bringing forward a blog post with another perspective. I agree with you, the viewpoint expressed by the “law” professor at Berkley is absurd. Nonetheless, no complaints here with Mr. Ward bringing the information to the readers attention.

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