Obama regulations chief pressed attacks on ozone standards

The outgoing White House regulations chief circulated industry attacks on proposed smog standards among high-level advisers to President Obama, emails released to The Hill through a FOIA request show.

Cass Sunstein, the regulatory official, ensured that White House aides including Nancy-Ann DeParle and Heather Zichal were made aware of powerful business groups’ concerns with plans to tighten ozone standards, a proposal that was subsequently put on ice. The debate consumed parts of the administration in 2011.

Records obtained under a Freedom of Information Act request also show efforts by lobbyists to appeal to White House officials on other rules, providing a window onto how industry groups sought to press their case with senior aides at 1600 Pennsylvania Ave.

The White House decision to override the Environmental Protection Agency (EPA) and delay the ozone pollution standards stands out as a brutal defeat for green groups and public health advocates. The decision, announced on Sept. 2, 2011, will be revisited in 2013.

The decision followed senior-level White House involvement in the EPA regulation, including an August meeting between Sunstein, then-White House Chief of Staff Bill Daley and lobbyists for the U.S. Chamber of Commerce and oil, chemical and manufacturing industry trade groups.

Daley met the same day with environmental groups that supported the rule. David Lane, who was an adviser to Daley, is among the recipients of Sunstein’s emails.

Internal communications show that ahead of the September decision, Sunstein circulated strong criticism of the ozone rule from a pair of powerful business groups, the National Association of Manufacturers (NAM) and the Business Roundtable, as well as House lawmakers opposing the tougher standards.

Sunstein heads the Office of Information and Regulatory Affairs (OIRA), a powerful department that holds sway over federal agency rulemakings. It’s part of the White House Office of Management and Budget (OMB).

Sunstein recently announced that he’s leaving the White House to return to Harvard Law School. His circulation of industry attacks on the ozone rule drew criticism from the Center for Progressive Reform, a liberal advocacy group.

“You would like to think that decisions about protecting the public health aren’t based on which interest has the most political power, but seeing industry’s talking points being forwarded around the White House is certainly not encouraging,” said Tom McGarity, a board member of the group and a professor at the University of Texas School of Law.

OMB spokeswoman Moira Mack said OIRA maintains an “open door” policy while rules are under review that includes “input from consumers, experts, health and safety advocates, industry, and small business owners.” She defended the White House record on regulations. 

“That record includes billions of dollars in regulatory benefits, including not only extraordinary economic savings for businesses and consumers, but also tens of thousands of deaths prevented and hundreds of thousands of illnesses and accidents avoided,” Mack said.

The response to The Hill’s FOIA request shows Sunstein played an active role in alerting White House aides to business’s concerns about tightening the ozone standards.

On July 15 of last year, Sunstein sent DeParle and two other aides a copy of a letter from the Business Roundtable to Daley, saying it was “worth reading.” The business group also released the letter publicly at the time.

On July 26, Sunstein sent a wider group of aides — including senior energy adviser Zichal and Phil Schiliro — a column titled “The Latest Job Killer From the EPA” that Business Roundtable President John Engler penned in The Wall Street Journal.

An un-redacted portion of the message from Sunstein states, “I am sure you saw this but just in case.

On Wednesday, Aug. 31, Sunstein forwarded several aides — including Stephanie Cutter, now a top Obama campaign official — an op-ed that NAM President and CEO Jay Timmons penned in The Hill attacking the ozone rule.

President Obama personally announced the delay of the ozone rule on Sept. 2, stating he was wary of imposing regulatory burdens during the economic recovery, especially given that the rule was already scheduled for review again in 2013.

“Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered,” Obama said.

Stuart Shapiro, a former OIRA policy analyst from 1998 to 2003 who has written about the regulatory review process, said he wasn’t surprised by Sunstein passing on critical op-eds and letters.

“In an argument, you will send your boss material that reflects your point of view,” said Shapiro, now a Rutgers University associate professor. “The point of OIRA is to consider the economic implications of every rule. They are the balance to the EPA on environmental regulations. That is to be expected.” 

Daley’s involvement in the process signaled the rule’s importance, he said.

“Having a chief of staff at one of those meetings was a big deal,” Shapiro said.

While industry lobbyists met with Daley on the smog rule, emails show that advocates of stronger pollution rules, such as the American Lung Association (ALA), were sought by administration officials to attend meetings with Daley on the proposal.

Janice Nolen, ALA’s assistant vice president for national policy and advocacy, said she was invited to a meeting with Daley by the administration. Though disappointed by the White House’s ozone rule decision, Nolen said she thought it was willing to listen.

“We definitely appreciated another opportunity to bring our president in again and make the same arguments that we had been making,” Nolen said of the Aug. 16 meeting with Daley, which representatives from the Sierra Club, the American Academy of Pediatrics, the League of Conservation Voters and other advocates attended. 

Records show that lobbyists approached the administration about other regulations, including another EPA rule, known as the utility MACT, that requires curbs on emissions of mercury and other toxics from coal-fired power plants.

“Cass, Im [sic] not sure you remember me but I worked for Rahm. I’ve had the experience of working with Peter prior to his departure,” said Brian Wolff, senior vice president at the Edison Electric Institute (EEI), in an email to Sunstein last year.

He’s referring to former White House Chief of Staff Rahm Emanuel, under whom Wolff served when Emanuel was in Congress.

Other emails indicate that EEI, which represents for-profit power companies, was also interested in meeting with Daley.

In an email to The Hill, Wolff, a veteran Democratic political strategist, said the trade group did not end up meeting with Daley. EEI did have a meeting with OMB officials — which Sunstein briefly joined — to discuss the power plant rule. 

Wolff said EEI supports efforts to curb power plant emissions but was working to have changes made to the utility rule.

The rule has since been finalized — a victory for environmentalists, who have long called for curbs on mercury and other air toxics from coal-fired power plants. OIRA held a large number of meetings with industry lobbyists, environmentalists and others about the rule.

Beyond EPA, other agencies grabbed the attention of Sunstein, such as the Occupational Safety and Health Administration (OSHA), which has proposed to strengthen protections against silica.

Brian Slobodow, then-CEO of the U.S. Silica Co., wrote a July 2011 letter to Sunstein urging him “to return the proposal to OSHA for further evaluation of risks, benefits and costs.”

In a subsequent email, Sunstein forwarded the letter onto DeParle, Lane and senior aide  Chris Lu, saying, “Worth a look.”

Zach Carusona, a U.S. Silica spokesman, said they didn’t receive a response from Sunstein but appreciate him reading the letter.

“We consider this regulation to be unnecessary and to have the potential to negatively impact the economy at a time when it is quite weak and the U.S. unemployment rate is unacceptably high,” Carusona said.

Peg Seminario, director of health and safety at the AFL-CIO, was not pleased.

“We have always been concerned that the OMB review process creates the opportunity for political interference on important rules in secret,” said Seminario, who supports a stronger silica standard. 

The silica rule has been under review at OIRA for more than a year.



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