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E & E News, April 29, 2009

'Jury is still out' after Obama's first 100 days
By Robin Bravender, E&E reporter

Within its first 100 days, the Obama administration moved to scuttle last-minute Bush-era rules and revamp the White House's role in federal rulemaking, but advocacy groups say President Obama must go further to boost transparency and roll back deregulatory practices.

During Obama's first weeks in office, the administration ordered a halt to all of President George W. Bush's pending last-minute regulations and tossed out a Bush executive order that had strengthened the White House's role in federal rulemaking.

"In most instances, the administration has moved away from a presumption of government secrecy to one of government openness, and Obama has scrapped some of the most damaging revisions of the regulatory process that Bush and his team imposed on the nation," said Gary Bass, executive director of OMB Watch.

"Overall, President Obama has set a positive tone on key regulatory components, such as transparency, scientific integrity, rolling back harmful deregulatory practices and appointing well qualified people to top positions at major regulatory agencies," according to an OMB Watch report released yesterday.

But Bass said some concerns remain about how the Obama administration plans to proceed with its overhaul of the regulatory reform process, especially given the recent controversial nomination of Cass Sunstein to lead the White House office that oversees agency regulation.

Sunstein, a friend of Obama and a well-known constitutional lawyer, has been nominated to head the Office of Information and Regulatory Affairs, or OIRA, the branch of the White House Office of Management and Budget responsible for reviewing draft regulations and assessing their costs and benefits. Sunstein is known as a strong proponent of cost-benefit analysis, which has some observers concerned that the White House will continue the Bush administration's legacy of wielding heavy influence over agency rulemaking.

Sunstein's appointment generated the most lively debate over these issues in decades, said Rena Steinzor, president of the Center for Progressive Reform. "I'm hoping he heard the message in all that and is going to adopt a moderate posture," she said.

Steinzor added, "I think the jury is still out on what will happen with regulatory reform in general."

Judgment will likely come once Sunstein gets to work as OIRA head and the administration issues its plans for revising the regulatory review process, experts say.

Jerry Ellig, a senior research fellow at the Mercatus Center at George Mason University, said that he does not expect the new administration to make sweeping changes to the regulatory review process.

"Back during the Clinton administration, the OIRA process was characterized as more of a consultative process than a gatekeeper process," Ellig said, a stance that the Obama administration may adopt. However, he added, "I don't really know how OIRA can avoid serving as something of a gatekeeper if it's going to do the job that the president wants it to do."

Quick action on climate change

Ellig noted that many observers have been surprised by the dearth of major rules from federal agencies during Obama's first 100 days.

"I think what most people expected is that there was a big pent-up demand for regulation and that one of the first things we would see out of an Obama administration is a whole lot of regulation very rapidly," he said. "The surprise is that the big expansion of what the government is doing has been on the spending side, rather than on the regulatory side."

But Matt Madia, a regulatory policy analyst at OMB Watch, said it would take time for the administration to roll out major regulations, given the extensive rulemaking process and the time it will take to fill vacant agency slots.

In some areas, like climate change, "there are indications that they are going to be as aggressive as people expected," he said.

U.S. EPA proposed a rule last month that requires industries to report their greenhouse gas emissions, and the agency released a proposed finding April 17 that greenhouse gases threaten public health and welfare, a move that is expected to trigger a host of regulations limiting carbon dioxide and other emissions.

Click here to read the OMB Watch report.

Photo © Paul S. Hamilton