Energy / Regulation

“Made in the Shade” Bringing Light to EPA Rulemaking

“My Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”

This statement forms the opening paragraph of a pointed memo released in 2009 by the then newly elected Obama administration that promised the dawn of an era of transparent and responsive government. These broad declarations make it surprising then that a series of congressional hearings this week found the Environmental Protection Agency (EPA) fending off sharp criticism for a perceived lack of transparency and unwillingness to respond to inquiry.

During her confirmation hearing to take over as the nation’s top enviro-regulator, Gina McCarthy’s exchange with legislators grew tense as she addressed concerns over statements made during her time as a department head with the EPA that raise questions as to her willingness to allow EPA employees to express their concerns with agency policy.

The concerns are not isolated to the politics of Capitol Hill. Earlier this month the Society of Environmental Journalists (SEJ) released a statement urging the EPA to reform a pattern of concerted action to avoid comment requests and delays in satisfying Freedom of Information Act requests. It is this policy of dodging information requests that leads the SEJ to label the EPA as, “one of the most closed, opaque agencies to the press.” The EPA often requires that reporters submit written requests rather than addressing questions directly and is notorious for delays in responding to valid requests for information.

Further scrutiny surrounds recent evidence of a long-standing policy of EPA regulators to setup email addresses under assumed names to forward internal documents. The concern is that these email addresses are being used to avoid the government email system and hide agency work from public scrutiny.

While the EPA has continued to starve public media seeking to examine the agency’s efforts, the EPA has continued to achieve new records as the nation’s most expensive regulator. The newly released Office of Information and Regulatory Affairs (OIRA) report to congress specifically highlights the EPA, together with the Department of Transportation, as accounting for 64 of the 115 major rules issued during the past decade, delivering 54% of all estimated monetized costs of regulation.

From the Utility MACT rule to Stationary Source regulation, these cost estimates measure the burden imposed on private firms to both bring their activity into accord as well as navigate a flood of red-tape compliance requirements. This total excludes several high-profile rules which were struck down by D.C. courts in recent years that would have imposed further significant burdens on the nation’s economy.

The EPA is often criticized for the scope of its regulatory activity and its influence over the national economy. This emerging debate over the opacity of the agency is, however, an important corollary to these discussions. These questions have as their central motivation a quest to ensure effective, yet limited regulation that is the result of reasoned and researched cost-benefit analysis.

Unfortunately recent efforts to pry deeper into the internal framework of the EPA indicate the toxicity of energy reform in the nation’s capital. Last Friday the House Committee on Energy and Commerce convened to consider the Energy Consumers Relief Act of 2013. This law would restrict the EPA’s ability to enact rules which it estimates will result in $1 billion in economic impact to the economy. This law would require that such rules trigger a heightened level of scrutiny and mandates independent analysis in such cases. Several members of the democratic minority voiced displeasure with the bill and confidently noted the legislation’s unlikely road through the U.S. Senate, calling the hearing a waste of time.

Though this legislation may be doomed to whither, calls for increased transparency and accounting at the nation’s top regulators must not. While energy and environmental regulation is often the forum for broad and divisive policy language, laws like the Energy Consumer Relief Act offer a tangible shift in debate to a more meaningful discussion of the internal processes of executive agencies. Responsive government is not the dramatic demand of an irrational public but rather nothing less than what was promised by a nascent Obama Administration.