It's Not a Backroom Deal If the Call Is Made in the Oval Office

By Cindy Skrzycki
Tuesday, April 8, 2008

It isn't often in Washington that a paper trail on a controversial regulatory decision leads back to the White House quite so publicly.

The conflict between Stephen L. Johnson, administrator of the Environmental Protection Agency, and Susan E. Dudley, head of regulatory review at the Office of Management and Budget, over how strong to make a standard on ozone, a component of smog, was unusual because President Bush was asked to break the impasse. He decided on a requirement weaker than what the EPA wanted.

"During my experience, the policy people in the administration are all part of the same administration and don't like to air a public policy dispute," said Donald R. Arbuckle, a retired deputy of the OMB Office of Information and Regulatory Affairs who served there 25 years.

Regulatory experts said this was the first time they recall a president stepping in, under a provision of an executive order allowing appeals between agencies and the OMB to be sent to him for a final decision. Typically, differences like these are worked out behind closed doors among top officials.

When the Department of Transportation was sparring with the OMB in 2005 over the terms of a rule on how long truckers could drive before resting, a long conference call between officials of the two agencies settled the differences.

Democrats in Congress want to follow the paper trail further. Rep. Henry A. Waxman (D-Calif.), who is chairman of the House Committee on Oversight and Government Reform, has asked the OMB for "unredacted copies of communications" about the ozone standard.

In the Bush administration, the OMB has usually intervened at earlier, informal stages of rulemaking, where there is no public documentation. That makes it difficult to know where changes in an agency's final rule originated.

Veterans of the process say the ozone dispute was extraordinary because three documents written between March 6 and March 12 spelled out in detail the policy positions and arguments that the OMB and EPA marshaled. The disagreement was over a so-called public welfare standard for ozone, which is designed to protect vegetation, parks and farm lands.

When the EPA sent its final rule to the OMB on Feb. 22, it proposed lowering the permissible ozone "public health" standard to 0.075 parts per million, the concentration in the air over an eight-hour period, from the current 0.084 parts per million.

The agency proposed for the first time changing the secondary standard to one in which ozone would be measured over a seasonal period because of concerns over the cumulative effect the pollutant has on vegetation.

Agricultural interests, including corn growers and others in the biofuels business, opposed the idea. They had a meeting with OMB officials, including Dudley, on Jan. 24. The administration reviewers also met with public health and environmental groups pushing to make the rule more stringent.

In going ahead with the plan for a separate secondary standard, Johnson was following the advice of EPA staff members and scientific advisers.

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