The Federal Register on Feb. 5, 2009, included what could be a whopper of a change in how the White House directs environmental policy.

The notice, available here, included a Jan. 30th, 2009, executive order that revokes executive orders 13258 of Feb. 26, 2002, and 13422 of Jan. 18, 2007, concerning regulatory planning and review.

Among other changes, the executive order restores a large amount of independence to federal agencies like EPA.

Background

On Sept. 20, 2001, the director of OMB's Office of Information and Regulatory Affairs (OIRA), John Graham, issued a memorandum titled OMB Regulatory Review: Principles and Procedures. The memorandum described the young administration's view toward President Clinton's 1993 Executive Order 12866, Regulatory Planning and Review, which required that OIRA review agency rulemaking.

Graham, by this time, had already made quite a mark at OMB (see Lynn Bergeson's column in the February 2002 issue of Pollution Engineering here). Industry groups had him on a pedestal. Environmentalists had his face on a dart-board. His letter, however, promised an even more significant level of involvement from OMB, not just on regulations, but on guidance, programs and pretty much everything else short of whom EPA hires and fires.

In September 2005, the Office of Management and Budget began circulating a draft document entitled Bulletin on Good Guidance, in which it floated the idea of White House review of almost all guidance documents issued by EPA and other agencies.

EPA expressed concern, at the time, that OMB lacked the staff resources to review all agencies' guidance documents, and that the extra layer of bureaucracy would open the door to White House political idealogues, rather than agency scientists, becoming the ultimate arbiters of agency policies. There was also concern that a pocket veto-like option would present itself for politicos at OMB to slow down or kill documents they didn’t like, but didn't want to put before the public. Another concern was that courts would see OMB's extra review as cause to make the guidance documents legally binding.

E.O. 13422 closes the 'guidance loophole'

Shortly after delivering the 2007 State of the Union address, President Bush issued Executive Order 13422, finally putting into effect the threats proposed by Graham in '01, and put for in late 2005.

Business groups hailed it as a great step toward reigning in an out-of-control process. Consumer rights and environmental watch groups decried the order as an attempt to grow the influence of the administration and favor business over consumer interests.

Why six years?

According to the N.Y. Times, there was a policy shift during the Bush years within the agencies that increased the number of guidance documents being written. Unable to move forward on their mandates as they had before, the guidance document became the greatest tool for EPA and OSHA, et al., to regulate.

This was true. As Stephen L. Johnson settled into the role of Acting EPA Administrator, and finally got the job full-time, his agency started proliferating some major guidance: Arsenic. Stack Testing. TSCA Reporting. Risk-Based Performance Standards. RCRA Test Methods. Metals Assessment. Due Diligence. Tungsten at Military Bases. Those of us who report on these things had a hard time finding all of them; I can only imagine what you folks in the regulated community were going through!

Even for someone like me who thought regulation was overdue, this was NOT the way to go about it.

One would like to think they were doing it because EPA took their mission seriously, because the laws passed by Congress needed to be upheld by the executive branch. Everyone's doing their jobs. But these were people, and I have to imagine there was some spite on both ends. In one corner, the scientists, with law and facts on their side, ready to protect American health as they saw best. In the other corner, a political administration of ideologues, made so by years of working for companies constantly under siege by changing regulations that didn't seem to care a hoot about what it did to American business.

(By the way, neither ever really understood the other guys and their motives).

I don't want to sugar coat this. The scientists were right, but their methods stunk. And the politicos in the White House were right to shut 'em down, even if it was the lack of leadership from 1600 Pennsylvania that prompted it.

But this "policy shift" in the agencies is not what prompted E.O. 13422. Look at the timing: whatever was going on at the agencies was nothing compared to the policy shift in Congress. The 2006 elections had put the Democrats in control of both the House and Senate, and they had arrived in a decidedly regulatory mood. Forget your petty battles over whether IRIS will ever get updated (over Graham's dead body) – the new guys on the Hill could pass a law to control CO₂ any day!

The White House acted quickly; they closed the loophole. Guidance would thereafter have to go through the same arduous process of public comment, as well as pass through a new regulation czar at OMB.

After six years in the White House, the regulatory agencies were finally brought to heel.

And then came Obama

The new executive order directs OMB and the heads of executive departments and agencies to "rescind any orders, rules, regulations, guidelines, or policies implementing or enforcing Executive Order 13258 or Executive Order 13422, to the extent consistent with law."

EPA now goes back to the same independence from the White House as it had under President Clinton. Gone is the restriction on guidance documents. Gone is the regulatory review guy.

But gone is the whole reason for the guidance blip in the first place. From their statements during the campaign and after, it's clear the new team in the White House is much more in tune with the thinking of its agencies. And of course, this Democratic Congress and Democratic President are going to start legislating on the environmental front.

But they may not need to. The key to this whole flap over guidance and agencies versus OMB was that nobody, during eight years of a pro-industry White House, ever changed the mission of the agencies. They obfuscated, shoved under the rug, remanded, dragged feet, antagonized and ignored them, but guess what: the same rules, the same science and the same regulations are still on the tarmac, ready for launch.

Businesses, you could very well get hit, and hit hard, with stuff that's been germinating since Clinton.

And that was the real folly, thinking that a guy like Graham was going to be good for business, when all he did was delay the inevitable. Fighting regulation with OMB and a couple executive orders is like reducing effluent by plugging up your pipes. By 2007, yes, they got new regulation down to a trickle. Now comes the deluge.