The order amends a series of previous executive orders that culminated in Executive Order No. 12,866, which the White House has used to give itself the power to review regulations before they can be officially published in the Federal Register.
The new order applies the review power not just to regulations but also to what it calls “significant guidance documents.”
“This order is just the latest in a series of unacceptable power grabs by the Bush administration,” said Joan Claybrook, president of Public Citizen. “President Bush is asserting the right to change the law by executive fiat.”
The group identified three major problems with the new executive order:
First, it requires agencies to get White House approval of many important kinds of guidance for the public, which would allow the White House to create a bureaucratic bottleneck that would slow down agencies’ ability to give the public information it needs.
Agencies use guidance to let the public know how they intend to enforce the laws and regulations on the books.
“By requiring White House approval of important guidance, the White House will insert its political agenda and pro-business bias into every level of agency policy, so that our federal government will handcuff itself instead of the companies that violate the law and put the public in danger,” Robert Shull, Public Citizen’s deputy director for auto safety and regulatory policy, warned.
Second, the new order stresses the concept of “market failure” in its revised command for agencies to state justifications for new regulations for public health, privacy, safety, civil rights and the environment. Market failure is an economics term describing situations in which private markets, left to themselves, fail to bring about results that the public needs.
This order will be enforced by Susan Dudley, a controversial figure the White House is setting up for a recess appointment to become the administrator of the Office of Information and Regulatory Affairs (OIRA) in the White House Office of Management and Budget.
She calls herself a "free-market environmentalist," who wants to protect the environment through "market-based incentives."
Based on an evaluation of Dudley’s record in a report released last year, Public Citizen has concluded that in her hands, the market failure provision will become a barrier to the protections that the public needs.
Third, the order requires agencies to develop annual plans for upcoming rulemakings that identify “the combined aggregate costs and benefits of all … regulations planned for that calendar year to assist with the identification of priorities.”
This new requirement will make cost/benefit analysis the central factor in setting priorities for needed protections of the public interest.
“These cost/benefit analyses are notoriously biased against regulation, especially long-term goals such as preventing global warming or cancers that manifest years after exposure to toxic substances,” said Claybrook. “The upshot of this whole executive order is that the White House is already working to undermine not just agencies but also the new Congress’ ability to protect the public.”
“The White House is amending the Administrative Procedure Act by decree, claiming power that belongs to Congress alone. It is an appalling arrogation of power and a slap in the face to the new Congress,” said Shull. “Congress must immediately arrange hearings to hold the president accountable for this affront to the rule of law.”
