In accordance with President Biden’s executive order on racial equity, The Office of Management and Budget (OMB) recently opened a public comment period requesting information on how it can help advance equity and support underserved communities in government decisionmaking. We at UCS jumped at the opportunity and submitted our public comment last week.
OMB has historically had an outsized role in influencing (or hindering) the enactment of public health and environmental protections. It is a small office in the White House that, among other things, plays a powerful role in every major rulemaking process at agencies and therefore plays a powerful role in determining whether you, your loved ones, and your community receives the health, safety, and environmental protections that you need and deserve.
Communities that have been historically disenfranchised – particularly communities of color, low-income communities, and Indigenous communities – continue to be disproportionately exposed to environmental hazards such as toxic waste sites, industrial facilities, and congested highways and, as a result, are at a greater risk of developing adverse health conditions like asthma, cancer, and even death. At the same time, underserved communities have been systematically denied the opportunity to meaningfully engage with and participate in the policymaking process that affects them.
It is imperative that we change governmental processes to combat this systemic disenfranchisement of underserved communities. Here are some of the ways UCS recommends OMB use its authority to lead the way:
Stopping dangerous practices that sideline the science
As we’ve detailed in a 2019 report, independent science-based decisionmaking processes at federal agencies are necessary to alleviate the inequities in health burdens faced by underserved communities. Therefore, OMB should ensure that deference is given to agency scientists and experts on the substantive scientific and technical content of rules. Additionally, OMB’s Office of Information and Regulatory Affairs (OIRA) – a suboffice tasked with review of agency rulemaking to ensure compliance under the Paperwork Reduction Act and the Information Quality Act – has a long history of overstepping its authority and engaging in problematic and non-transparent processes that can undermine federal science. Among the many needed reforms to the office, OIRA should enhance transparency and efficiency and actually commit to following the reforms suggested repeatedly by the US Government Accountability Office (GAO) since at least 2003.
Since OMB’s founding, the agency has, on numerous occasions, overstepped its authority to undermine science-based decisionmaking at federal agencies and, as a result, disproportionately impacted underserved communities. It is alarming that OMB and OIRA can, with a quiet conversation or a stroke of the pen, erase years or even decades of scientific work at agencies that are meant to underpin the rules and regulations that keep us safe and healthy.
In the UCS comment, we included 19 different examples across three presidential administrations (George W. Bush, Barack Obama, and Donald Trump) in which OMB attempted to weaken science-based decisionmaking processes at federal agencies or when OIRA inappropriately interfered in the science underlying regulations and other agency actions. For instance, OIRA cast doubt on climate change science in a 2003 EPA report; minimized the health risk of formaldehyde in a 2004 EPA rule on plywood; eliminated asthma as a health impact in an EPA formaldehyde rule in 2012; substantially weakened and changed the data of a 2013 EPA rule that regulated coal ash; and changed the underlying nature of a 2021 EPA guidance document on banning the import of PFAS-laden products by providing a loophole for certain PFAS products.
Reforming the use of cost-benefit analyses
OMB and agency staff primarily determine whether a regulation is “worth it” by using a cost-benefit analysis, which is meant to compare the dollar amount of the net costs with the net benefits associated with a decision. Scientists, policy experts, and environmental justice advocates have pointed out the flaws in OMB’s current approach to cost-benefit analyses. In particular, the current form of cost-benefit analyses used by OMB does not incorporate all the key societal benefits associated with the rules they are evaluating, such as human dignity and justice, and that it fails to account for the legacy of systemic racism in our nation and how that creates additional burdens for Black and brown communities.
One particularly promising way that OMB can reform the use of cost-benefit analysis is by directing agencies and its own staff to develop and use new tools for accounting for the distributional impacts of a rule. In its current form, cost-benefit analysis used by the federal government focuses only on aggregate societal benefits weighed against aggregate societal costs, thereby ignoring how the benefits and costs are distributed across the population. Distributional impacts are at the heart of the environmental justice movement. When scientists and policymakers consider distributional impacts of policy, it helps ensure that no group is disenfranchised or facing larger health burdens than other more privileged groups.
OMB should also reevaluate its processes for determining the worth of a life (e.g. value of a statistical life), calculating the impacts from climate change (e.g. the social cost of carbon and its discount rates), and verifying industry-submitted information on the cost of regulations, while also requiring or strongly recommending the use of cumulative impact analyses and equity analyses.
Implementing equitable strategies across agencies
One of OMB’s major duties is to coordinate actions across federal agencies which means the office can serve as a critical support for agencies’ efforts to improve their rulemaking processes to be more equitable and just. For instance, in coordination with relevant agencies like Council on Environmental Quality (CEQ), OMB can work with federal agencies and issue guidance on ensuring equitable processes during National Environmental Policy Act (NEPA) reviews, bolstering environmental enforcement, incorporating climate change impacts, and ensuring that air and water monitoring programs are adequately characterizing pollution exposure in communities.
OMB can also do more to remove barriers for communities to participate in agency rulemaking, uplifting the voices of impacted communities and incorporating the use of community science in agency rulemaking. Individuals from impacted communities often bring a particular experience that is too often missed or undervalued by policymakers, and therefore one of the best ways to incorporate equity into rulemaking processes is to ensure that communities have a seat at the table such that their knowledge, viewpoints, and perspectives are fully incorporated into policymaking. For example, OIRA could incentivize agencies by asking them to check a box when they submit rules for review indicating that they consulted and solicited feedback from impacted communities, and then move those community-consulted rules into a queue for priority review. Sharon Block, the current acting OIRA administrator, appears to be heavily in favor of this suggestion. In 2020, Block expressed strong support for OIRA to give “priority review to [agency] regulations that have gone through a participatory regulation process in order to create an incentive for robust engagement by agencies.”
One promising but underdeveloped way of supporting underserved communities is through the use of community science, also called citizen science. Community science allows for scientific collaborations between scientists and interested members of the public and therefore can lead scientific institutions to employ more robust, open, and democratic decisionmaking processes. OMB should coordinate with the Office of Science and Technology Policy (OSTP) to issue clear guidance on how to encourage innovative community science projects, provide standards and tools for communities to best inform the process, and help agencies determine how and when to use and prioritize community science to support regulatory decisionmaking.
Conclusion
OMB has the opportunity to improve internal practices and coordinate across agencies to make rulemaking more equitable and help reduce the enormous health, environmental, and safety harms disproportionately burdening historically disenfranchised communities.
The actions that OMB takes now in response to the Biden administration’s prioritization of advancing equity will have far reaching and long-lasting consequences. Positive steps could help communities actually benefit from the science-based protections they desperately require for their health and safety. We at the Union of Concerned Scientists will be watching closely to see how OMB responds to the information received during this comment period and will continue to advocate for meaningful changes that fully incorporate equity and environmental justice into its work.