2013 Garrison Lecture – Professor Lisa Heinzerling

Professor Lisa Heinzerling delivered the 2013 Garrison Lecture on March 12, entitled Inside EPA: A Former Insider’s Reflections on the Relationship between the Obama EPA and the Obama White House.  Professor Heinzerling is a Professor of Law at Georgetown University, where she teaches environmental and administrative law.  Professor Heinzerling served as the Senior Climate Policy Counsel to the Administrator of the EPA from January 2009 to July 2009 and Associate Administrator of EPA’s Office of Policy from July 2009 to December 2010.  Since becoming a professor, she has continued to litigate cases and served as the lead author of the winning briefs in Massachusetts v. EPA, in which the Supreme Court held that the Clean Air Act gives EPA authority to regulate greenhouse gases.

Professor Heinzerling’s Garrison Lecture focused on the question of who runs EPA.  The question is a complicated one because President Reagan passed Executive Order 12291 in 1981, which placed the Office of Management and Budget (“OMB”) in an advisory role over agencies.  Executive Order 12291 specifically required that all major rules be sent to OMB for review and approval.  Economically significant rules must be accompanied by cost/benefit analysis.  In reviewing the Executive Order at the time, the Office of Legal Counsel found it to be legal because it would not displace the authority of the agency, but only guide and limit it.  During these years; however, Professor Heinzerling argued that the White House displaced the authority of agency decisions.

In 1993, President Clinton passed Executive Order 12866.  Professor Heinzerling stated that the purpose of this Executive Order was to re-new the balance between agencies and the White House and reaffirm the primacy of the Federal Agencies.  This Order specifically required more disclosure than Order 12291 under President Reagan.  During President Bush’s terms, although he reaffirmed Executive Order 12866 from President Clinton, he and also passed Executive Orders 13258 and 13422.  The new Orders under President Bush made guidance decisions, which are statements of policy that are short of rules, subject to White House review.  This policy allowed the White House to intervene earlier in the Agency rule making process, allowing more control over final rules.  In addition to an earlier intervention, Professor Heinzerling explained that the White House can elect not to receive a rule from the Agency, which enables them not to review rules from the Agency.  For example, after the Massachusetts v. EPA litigation, EPA’s final rule spent one year sitting in the computer system and was not received by the White House until President Obama came into office.  Although President Bush directed the Agencies to work on a rule in order to comply with the Supreme Court’s decision, the White House did not accept the rule once the Agencies finished their work.

When President Obama came into office, he issued Executive Order 13497, pulling back on the Bush era Executive Orders.  In this Executive Order, President Obama stated that OMB would not have control over guidance issued by the Agencies.  However, shortly after the Order, OMB released a Memorandum stating that they were still reviewing guidance.  Although in direct contradiction to President Obama’s Executive Order, EPA has followed OMB’s Memorandum.

Professor Heinzerling found that these Executive Orders make it difficult to determine who is in control of Agency rules promulgated by EPA, because there is no clear picture of who is reviewing or stopping a rule.  The Office of Information and Regulatory Affairs in the OMB is formally charged with reviewing rules; however, they are not the only group that can review and stop a rule.  White House personnel, the Cabinet, and career staff can also all stop a rule from being promulgated by an Agency.  Who is in charge of reviewing and approving rules is diffuse with many individuals who have the power to stop a rule.  OMB’s review of rules falls disproportionately on EPA, which is the Agency typically with the most rules under review at any given time.

Professor Heinzerling believes that this process is important to review for several reasons.  First, although President Obama has advocated transparency, this process is only partly transparent.  Second, Congress generally gives the authority to issue regulations to the Administrator of EPA; however, it is unclear who is actually reviewing and making the decision of whether these rules are promulgated.  Third, in terms of accountability, we do not know who has the final say and who should be held accountable for the promulgation of rules or the failure to promulgate rules.  Finally, environmental protection gets lost in this process.

At the end of the lecture, Professor Heinzerling took several questions from students and professors.  When asked whether it is misleading that judges defer to EPA expertise when EPA might not be the Agency in charge of rules, she stated that this process does undermine this assumption.  It also undermines the agency’s culture as an expert body charged with making rules based on their expertise.

Another attendant asked if there would ever be an agency Administrator with the political capital and guts to do what was right and to follow the delegation of power specifically described in Statutes.  Professor Heinzerling stated that there have been administrators that have been strong willed and stood up for their ideas.  However, she found that there comes a time when the Administrator must think to herself if she should follow the system or violate the rules of the Executive.

Finally, the discussion turned back to why EPA would follow OMB’s Memorandum that they would continue to review guidance issued by EPA.  Professor Heinzerling stated that it would not have gone over well if EPA did not send their guidance decisions to OMB.  She found that the practical reality to be that OMB could not have issued the Memorandum without the White House’s approval and there was no real possibility for EPA to say no.

Professor Heinzerling illuminated a dynamic between EPA and OMB that is not often seen by individuals outside of these Agencies.

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