By Amit Narang, Public Citizen
The White House agency in charge of reviewing regulations, the U.S. Office of Information and Regulatory Affairs (OIRA), conspired with the U.S. Environmental Protection Agency (EPA) to circumvent important rulemaking requirements – and ram through a deregulatory giveaway to “glider” trucks, which are super-polluting diesel freight trucks created by dropping old, dirty truck engines into new truck bodies. If allowed to go forward, this loophole for the trucking industry will pollute our air and harm children’s health.
The story begins several years ago when, under the Obama administration, the EPA applied its new, cleaner emissions standards to glider trucks. When the Trump administration took power, former EPA Administrator Scott Pruitt attempted to exempt glider trucks from the Obama era emission standards as a handout to the industry that makes them. The EPA’s Inspector General (IG) is already investigating the EPA’s role in this tawdry tale, but new reporting makes clear that the White House’s role in this incident needs to be investigated as well.
When Public Citizen examined the glider truck carve-out, we discovered potential manipulation of the EPA’s rulemaking process, as outlined in testimony to the EPA’s scientific advisory board in 2018, before the IG investigation was requested. From documents publicly available at the time, we found that the EPA intentionally avoided conducting certain analyses to conceal the harmful health impacts of allowing dirtier emissions from glider trucks, especially on children.
U.S. Senate Democrats on the Environment and Public Works Committee reached a similar conclusion in December 2018 and requested that the EPA’s IG investigate the agency’s process for repealing cleaner emissions standards for glider trucks.
Now, newly released documents show that EPA’s IG is almost certain to confirm our suspicions: that the agency knowingly refused to do numerous analyses on the harmful impacts of its carve-out for glider trucks that normally are required when taking this type of regulatory action.
Usually, an agency’s attempt to skirt analytical requirements runs into problems when the regulation is sent to OIRA, the small office in the White House that is tasked with reviewing and approving certain regulations and their accompanying analyses.
But the new documents show that OIRA acted as an accomplice, helping the EPA flout the analytical requirements. In fact, it looks like OIRA deliberately fast-tracked the glider trucks carve-out by allowing the EPA to bypass analyses that are required for exemptions from new emissions standards.
A few weeks ago, a Bloomberg Law reporter broke the story that former EPA head Pruitt received a handwritten letter from a former Republican congresswoman from Tennessee asking for the glider carve-out. One of the largest glider truck manufacturers is based in her district.
The story, based on EPA documents obtained by the reporter through a Freedom of Information Act request, confirmed strong suspicions that the EPA was lowering the emissions standards for glider trucks as a political favor to the congresswoman and the glider manufacturer.
Buried within the hundreds of pages of documents were emails from staff at both the EPA and OIRA showing both agencies colluding to rush through the glider truck carve-out by skipping the required analyses.
OIRA was created under President Ronald Reagan to review and approve the most important and impactful regulations from federal agencies. But since its founding, OIRA generally has opposed strong regulations that protect the public while favoring deregulation.
This incident is just the latest example.
The reason the EPA sent its glider trucks carve-out to OIRA in the first place is because the regulation was classified as an “economically significant” regulation. In other words, the EPA (correctly) believed that the regulation would have major economic impacts. Such rules have to be reviewed by OIRA.
When a rulemaking is classified as “economically significant,” in addition to putting it under OIRA review, it also normally triggers a requirement to assess its potential costs and benefits. And when it’s a rulemaking from the EPA, this designation also triggers the requirement to look at the public health impacts on children and minorities. All of these analyses ultimately would need to be reviewed by OIRA as it does its review of a rule.
Yet the EPA sent OIRA the glider truck rulemaking without any of the required analyses. In fact, the regulation had virtually no evidence to support it. Moreover, the EPA did nothing to refute its earlier findings from the Obama administration that exempting glider trucks from clean air standards would lead to enormous amounts of harmful pollution that would negatively impact vulnerable populations.
Normally, OIRA would have rejected the regulation and told the EPA to do the supporting analyses before allowing the EPA even to propose the rulemaking. Under the Obama administration, OIRA never hesitated to hold up regulations, often for years, while it insisted agencies provide more information and analyses to justify regulations.
As emails between the EPA and OIRA show, OIRA allowed the EPA to change the designation of the glider truck regulation from “economically significant” to merely “significant” to let the EPA propose the carve-out without having to do the various analyses required of “economically significant” rules.
This was the very last change the EPA made to the regulation before OIRA ended its review of the regulation and approved EPA to propose it publicly. OIRA wanted the change in order to cover its tracks, since leaving the regulation as “economically significant” would have led to questions as to why the typical analyses that accompany “economically significant” regulations had not been done by EPA.
One of the email subject lines from an EPA staffer reads, “RE: last minute significance change request from OMB.” While the content of the email is redacted, the subject line clearly indicates that OIRA (housed within OMB) requested that the EPA change the significance designation of the regulation.
Subsequent emails dispel any doubt that this occurred.
One email from an EPA staffer to other high-level EPA political appointees reads, “we just received word from OMB that they have cleared the Glider NPRM (with the change from “economically significant” to “significant”).” In other words, OMB cleared the change in the rulemaking’s designation from “economically significant” to “significant.”
Another internal EPA email makes clear that OMB requested the change, “…given that OMB was the one proposing the change be made from ‘economically significant’ to ‘significant…’”
Interestingly, this email chain also contained an email from an EPA career staffer with the subject line, “Why the draft glider repeal NPRM is Economically Significant.” This indicates that the EPA’s career staff believed the proper classification for the glider truck exemption would be an “economically significant” regulation.
These emails should lead the EPA’s IG to conclude that agency violated basic requirements in the regulatory process in trying to exempt glider trucks from pollution standards. With OIRA’s help, the EPA deliberately mischaracterized its carve-out for glider trucks to make it look like it was complying with requirements in the rulemaking process, when in fact it was not.
This raises profound concerns about the integrity of both the EPA’s rulemaking process, which already has come under close scrutiny due to numerous lapses under the Trump administration, as well as the integrity of OIRA’s regulatory review process.
A top to bottom audit of the EPA’s rulemaking process and OIRA’s regulatory review process might reveal that this incident is just the tip of the iceberg.