Quayle Council staff claim that their role in regulatory review is strictly to “give guidance to the agency" about "consistency with the president's policy.” » 10 In practice, however, the Council has forced substantive changes on reluctant agencies. One example is a recent controversy in which the Quayle Council pressured EPA Administrator William Reilly to rollback protection on wetlands. This happened behind the scenes, and the public would have no idea about it if EPA staff had not leaked the information to the media. (See Wetlands Case Study.) The Quayle Council's ‘guidance,' in fact, bears all the subtlety of a sledgehammer's blow. Because the Quayle Council oversees OMB's Office of Information and Regulatory Affairs—which is charged under executive order with signing off on agency regulations (see box "The Quayle Council's Centralization of Power")—it is unlikely that an agency would choose to ignore such ‘guidance.' In addition, the Council's official membership is composed of cabinet-level officials; for an agency head to ignore the advice of his or her peers could spell political suicide. In the case of the Council's mediation in an EPA recycling rule, for example, EPA Administrator William Reilly, formerly a strong supporter of the requirement, quickly backed down after the Council disagreed with his position. (See Recycling Case Study.) Quayle Council 'guidance' is all the more troubling because it is nearly impossible to challenge its legality in court. For the majority of federal agencies develop regulations, they must meet guidelines set by the Administrative Procedure Act (APA), enacted in 1946 and designed to prevent the very sort of improper and off-the-record interference in regulations that the Quayle Council practices. As a result of enactment of the APA agencies maintain records of the decision-making process for developing new regulations. That way if the regulations are challenged later in court, there is an ample record to examine and determine whether the agencies have acted according to congressional intent. When the Quayle Council interferes in the rulemaking process, however, there is no record and no accountability—which makes a court challenge of its actions quite difficult. When Does the Quayle Council Interfere? 12 13 While the Council seems to involve itself in virtually every controversial health, safety, and environmental regulation that makes its way through the federal bureaucracy, there are a number of factors that may influence a Council decision to get involved. One Council staff member11 says that the staff of OIRA may tip off the Council on a particular issue, or that the Council may be alerted by an "outside" group." Quayle himself has said that he consults most often with business leaders, who can tell him better than economists "how the clock is ticking," and the Council's executive director, Allan Hubbard told the National Journal last July that "When they feel like they are being treat unfairly, [industry groups] come 15 In the recent wetlands debate, for example, the Council was lobbied heavily by business and industry groups opposed to wetlands protection. An official of the American Farm Bureau Federation to us. 14 10 Interview with Quayle Council staff member. The staffer agreed to speak about the Council's methods with the Government Information Insider, an OMB Watch publication, but on condition that he would not be quoted by name. 11 Background interview with Council staffer. 12 The Paperwork Reduction Act gives OMB's Office of Information and Regulatory Affairs (OIRA) the authority to review agency requests for the collection of information; executives order 12991 and 12498 give OIRA the authority to review all regulations. See Box on "Centralization of Power". At present, the directorship of OIRA is vacant and has been since October 1989. The resulting power vacuum has added to the attractiveness of the Quayle Council as a lobbying target for special interest groups. 133 When asked what sort of “outside” party, the staff member said “citizens' groups.” But when asked which citizens' groups, the staff member could think only of one: Citizens for a Sound Economy, a conservative advocacy group headed by former OMB Director James Miller. 14 Hobart Rowen, Washington Post interview. 15 Victor, Kirk, “Quayle's Quiet Coup," National Journal, July 6, 1991. said that he is not exactly sure how his organization wound up talking to Quayle's people, but averred, "We certainly knew about it [the Council]." III. Two Selected Memos From Dan: A Demand for Deregulation and a Power Grab In addition to exerting behind-the-scenes pressure, the Quayle Council follows more obvious ones from time to time, such as the grand tradition of internal memos. Two Quayle memos, in particular, have become infamous to Washington insiders: the first sent to agency heads in fall 1990, the second in March 1991. While these memos are major expressions of government policy, the public would be hard pressed to obtain copies. Demand for Deregulation n16 17 The first memo went out to agency heads in the fall of 1990, asking them to propose “de-regulatory initiatives in their area that can be implemented through administrative action and, if necessary, one or two legislative proposals." WOMB Watch obtained a copy of one of these memos-addressed to EPA PA Administrator William Reilly- and the subsequent agency response, but only through an EPA source. Interestingly, these documents were not provided in a later FOIA request filed by OMB Watch and Public Citizen to the Council on Competitiveness. Nor were any of the responses to Quayle from other agency heads- even though such documents would include valuable information for the public. The Quayle Council's demand for deregulation has been evident from its inception. The Vice President's strong bias toward free market initiatives is complemented by his staff, which advocates deregulation quite plainly (see PLAYERS). Quayle's quest for deregulatory initiatives is bolstered by the Council's commitment to stop regulatory "creep." Power Grab 18 The second memo, which was sent to agency heads on March 22, 1991, caused even more of a stir. This document blandly stated that the Council would oversee the regulatory review process under Executive Orders 12291. It then went on to expand the list of items the Council has authority to review, to the point of absurdity. Items subject to regulatory review were to include: “strategy statements, guidelines, policy manuals, grant and loan procedures, Advance Notices n19 If agencies followed this directive to the letter, the Quayle Council would be literally inundated with paper-a severe irony, since one of the major Administration complaints about health, safety, and environmental regulations is that they create unnecessary paperwork. If the Quayle Council were to receive what it asked for, only gridlock could result. Quayle certainly succeeded in distressing agency officials. The memo, initially sent just to department secretaries, quickly spread all over town. (Again, the Council chose not to include this document when responding to an OMB Watch/Public Citizen FOIA request.) While some agency officials only heard of See Council on Competitiveness fact sheet dated Sept. 27, 1990, which says that agencies will be asked for deregulatory proposals. The memo to Reilly is dated October 24, 1990. The agency responded to Quayle with suggestions the following March. See Council on Competitiveness Fact Sheet, May 7, 1991. Memorandum from the Vice President to all heads of executive departments and agencies, March 22, 1991. the memo's existence, others received copies from triumphant OIRA reviewers, who held up the Vice President's memo as a ringing endorsement for their role in regulatory review process and as a confirmation of their stranglehold on the agencies. It was this memo that reinvigorated congressional curiosity about the Quayle Council and inspired requests for more information about the Council's workings. (See section above: The Council Works in Secret). The Quayle memo remains downright confusing. It seemed to expand the authority of the Quayle Council beyond even the practice of the Bush Task Force, but exactly how far was not clear. At the same time agency officials were scratching their heads, officials in the Vice President's office and at OMB were busy denying that the Quayle memo signaled any expansion of authority. CASE HISTORIES I. REGULATORY INTERFERENCE WETLANDS Millions of acres of wetlands lost because of backdoor Council interference In 1988 George Bush promised that, if elected, he would allow "no net loss of wetlands" -- part of his pledge to be the "environmental president." Three years later, the Bush Administration's primary action on wetlands has been to force a new policy on the EPA that would rollback protection on ten million acres of wetlands. But Bush didn't take on this task personally. Instead the Quayle Council assisted by a few key members of the Domestic Policy Council, took the lead in a contentious dispute with the EPA over such technical matters as how many days land must be submerged under water to be considered a wetland. Three EPA staff scientists resigned over the course of the controversy, frustrated by the lack of both scientific rigor and public accountability throughout the debate. William Sippel, an EPA scientist who worked on the original manual, resigned after working on the proposed revisions for several months. The political pressure to narrow the scope of the regulations was great, according to Sippel, who withdrew from the technical panel over its handling of the wetlands manual. According to a senior EPA official who spoke on the condition of anonymity, two other staff scientists left in disgust with the politicization of the wetlands issue. In fact, the wetlands debacle could serve as a textbook case of how the Quayle Competitiveness Council, free from public scrutiny, forces ideological stances on government agencies. “This wasn't about protecting wetlands. This was about [the White House] not wanting to regulate private property," said the EPA official. At issue was a technical manual, drafted by agency scientists in 1989, which set out guidelines for defining wetlands.1 Due to the broad scope of the issue, four agencies- the Department of Agriculture, the Department of Interior, the Army Corps of Engineers, and the EPA – have jurisdiction over wetlands in one way or another, and confusion was caused by varying wetlands definitions from agency to agency. These procedures didn't differ just from agency to agency—often offices within a single agency would disagree. Yet all agreed that wetlands needed protecting. Wetlands are complex ecosystems ranging from wooded inland areas wet just below the surface to low-lying southern swamps covered by standing water year round. They act as filters for toxic and chemical pollution as water returns to underground supplies, and provide habitats for a vast array of wildlife and plants. They control erosion by cutting down on the amount of sediment that flows downstream and help reduce flooding in other areas. Wetlands also help keep coastal waters clean. In this way wetlands are vital to the seafood industry, especially for fish that swim upstream to spawn, such as salmon and rockfish. And finally, wetlands provide open space for recreation, such as fishing, hunting, and hiking. Under existing law, a permit must be granted by the Army Corps of Engineers before a privatelyowned wetland can be filled in. The EPA has veto power over the permit process. Filling in wetlands is 1 The EPA's 1989 manual on wetlands stated land had to be saturated for seven consecutive days to be considered a wetland. EPA Administrator William Reilly started negotiations on the revised manual at 10 days; the Quayle Council countered with 21. Developers, farmers, and other business groups wanted the definition to rest at 30 days. |