Lobbyists Analyzing Ginsburg's Role in Derailing Asbestos Regulations

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Washington--Lobbyists scrutinizing Douglas H. Ginsburg's nomination to the U.S. Supreme Court are examining the role he played as a top White House official in derailing a proposed ban on asbestos.

The regulatory change of signals in 1984-85 reportedly affected the Environmental Protection Agency's consideration of proposed school-asbestos rules.

That and other elements of Mr. Ginsburg's record as head of the Office of Management and Budget's information and regulatory-affairs office from July 1984 through September 1985 appear likely to become a topic of debate when the Senate Judiciary Committee opens hearings on his nomination as Associate Justice.

The hearings are not expected to begin before the end of the year.

Senators are also expected to question Mr. Ginsburg closely about his revelation late last week that he had smoked marijuana on several occasions during the 1960's and 1970's.

The disclosure has reportedly upset conservative senators who voted to approve the nomination of Robert H. Bork, President Reagan's first choice for the Court.

Unlike Mr. Bork, who clearly staked out his judicial philosophy in numerous articles and speeches over two decades, Mr. Ginsburg will not offer lawmakers much documentation on his views on the key constitutional issues of the day. Moreover, the handful of majority opinions he has written in his year as a federal appellate judge generally have focused on highly technical matters of antitrust law, in which he previously specialized as an assistant attorney general in the Justice Department.

But his apparent support for shifting rulemaking and enforcement authority from the federal government to the states and the private sector raises "critical questions" about how he would rule on a wide range of issues, said Gary Bass, executive director of o.m.b. Watch, a public-policy group that monitors the budget office's activities.

His views have "tremendous implications for freedom of information, for the question of who pays for what," Mr. Bass said. "Would he argue that there is no [federal] ability to pre-empt state law in areas like civil rights or special education?"

Noting Mr. Reagan's pledge to nominate someone as controversial as Mr. Bork, Ralph G. Neas, executive director of the Leadership Conference on Civil Rights, said, "We have to take the President seriously."

"We are looking very carefully at the judicial philosophy and record of Douglas Ginsburg," Mr. Neas said. "If he does not understand the role of the federal courts in protecting individual liberties and does not have a commitment to equal justice under the law, the opposition to him will be as vigorous as the opposition to Bork."

'Chicago School'

Before coming to Washington, Mr. Ginsburg taught at the Harvard Law School for eight years. Like Judge Bork, he is identified with what is known as the "Chicago school" of legal thought, which favors reliance on market forces, opposes government regulation, and advocates basing legal decisions on analyses of social costs and benefits.

The omb office that Mr. Ginsburg headed was created by the Paperwork Reduction Act of 1980, which mandated that o.m.b. review all proposed regulations and require agencies to perform cost-benefit analyses for proposed rules.

During Mr. Ginsburg's tenure there, the office mounted an anti-regulatory campaign that primarily affected environmental and safety standards, including the proposed rules on asbestos.

In 1983 and 1984, the Environmental Protection Agency proposed an outright ban on four types of asbestos products and the gradual restriction of the amount of asbestos produced in the United States. Under pressure from Mr. Ginsburg's office, the epa withdrew the proposals and shifted the issue of asbestos regulation to other federal agencies.

That decision was reversed after intense public scrutiny and investigations by two Congressional committees.

Asbestos in Schools

At the time that controversy was raging, the e.p.a. was also considering toughening existing rules that required schools to inspect for asbestos and to notify employees and parents when the substance was discovered. Labor unions, education groups, and others who lobbied for the rules said pressure from o.m.b. was "a critical factor" in derailing the new mandates for schools.

As a result of the omb's efforts, the lobbyists alleged, the epa decided against issuing rules to require schools to remove or contain asbestos when it was found. The4Congress mandated such action in a law passed in 1986. (See page 10.)

Mr. Ginsburg also oversaw the drafting and implementation of an executive order increasing omb's regulatory review powers.

The order requires agencies to submit all intended regulatory activities--including research on possible regulations--to the budget office before the rules are even proposed, and before any public notice. The budget agency then reviews the plans for consistency with Administration "policy and priorities."

According to o.m.b. Watch, Mr. Ginsburg also wrote a policy directive restricting federal agencies' data-collection activities. It ordered agencies to gather only information required by law or "essential to the agency's mission" that does not duplicate information available from other government or private sources.

Vol. 07, Issue 10

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