Last week, the White House’s Office of Information and Regulatory Affairs (OIRA) approved a survey to be conducted for the Occupational Safety and Health Administration (OSHA) as part of the agency's efforts to develop an Injury and Illness Prevention Program (I2P2) standard. Surveys, like this one, have to be approved by OIRA according to the Paperwork Reduction Act, and the lengthy approval may stall development of the I2P2 standard for four or more months for no apparently good reason. OIRA made only minor changes to the draft documents.
The I2P2 standard is OSHA’s signature regulatory initiative, and it comes in the nick of time. With its small and dwindling staff, a result of Congress putting it on a starvation diet of resources, OSHA has found it difficult to update its safety and health standards to protect workers, or to adopt new ones to address hazards that are not yet covered, leaving thousands of workers with inadequate protection. To fill this gap, Dr. David Michaels, OSHA’s administrator, and a public health expert, has proposed I2P2, a standard that would require employers to establish a management program in which employers and employees work together to identify and address workplace hazards. California already has a version of the standard on the books. The USDA uses a similar system to ensure that meat packers address potential sources of contamination in their plants.
While a four-month delay does not sound like very much, it is likely to put OSHA behind schedule in developing the standard. Typically, OSHA’s efforts to comply with the Small Business Regulatory Enforcement Fairness Act (SBREFA) involve vetting a detailed draft of a proposed rule with a Small Business Advocacy Review Panel; that's one of the next steps in this process. OSHA had planned to garner SBA Review Panel approval by June, but if the “Baseline Safety and Health Practices Survey” that sat at OIRA for more than four months awaiting approval is an important part of developing the I2P2 proposal and that proposal needs to be nearly finished before SBA review begins, it looks like the June deadline won’t be met. Based on the documentation on OIRA’s website, ERG’s final report to OSHA on the survey results won’t even be submitted until September.
Full textThis coming April 20 will mark the one-year anniversary of the first day of the BP Oil Spill – a three-month polluta-polluza that eventually became the largest accidental marine oil spill in the history of the world. That was the night that a long series of failures finally came to a head: failures aboard the Deepwater Horizon by BP and its contractors, failures in the enforcement of regulations intended to prevent such disasters or at least limit the damage from them, failures in the crafting of the regulations governing the process by which BP won approval to drill, and failures in the drafting of the legislation from which flowed the regulations.
For the 126 workers on the Deepwater Horizon that night, the sounds and images of those failures must have been terrifying beyond imagining. Eleven of them didn’t make it home alive, and another 17 were severely injured. The rest escaped in lifeboats or by jumping into oily seawater while a fire raged overhead. Nearly three months later, after an estimated 4.9 million barrels of oil had spewed into the Gulf of Mexico, the damage spanned hundreds of miles of shoreline and thousands of square miles in the Gulf. Clean-up efforts continue to this day, and will for some time, although oil along the bottom of the ocean is unreachable.
The BP Oil Spill was not just a really unlucky break, as the oil industry would like us to think it was, but was the product of corner-cutting by industry, with the tacit approval of government. If the agency then called the Minerals Management Service (MMS) had been serious about its job of reviewing safety plans to make sure they would work, BP might never have gotten approval to drill. But that wasn’t how MMS worked. It saw its role as helping to keep the oil flowing, not making sure that BP and the rest of the industry took their safety obligations seriously.
There were other regulatory failures, as well, and CPR Member Scholars have meticulously documented them in our October 2010 report, Regulatory Blowout: How Regulatory Failures Made the BP Disaster Possible, and How the System Can Be Fixed to Avoid a Recurrence. But there’s another failure, an ongoing failure, at work in the Gulf as well, one that’s making it harder for the victims of the BP Spill – the survivors, the relatives of those killed, businesses and employees who lost their livelihoods as a result of the damage, and others – to recover.
For years, the “tort reform” movement has worked to undercut the nation’s civil liability laws, making it more difficult for victims to sue the companies that have done them harm. In this movement, tort reform consists of limiting or rolling back existing opportunities for victims to sue in court, and the business trade associations behind the movement have had some success. As a result, the survivors and economic victims of the spill are confronted with significant constraints on their ability to seek compensation in court for the harm done to them.
A new report issued this morning by CPR, The BP Catastrophe: When Hobbled Law and Hollow Regulation Leave Americans Unprotected, notes that U.S. law relies on two complementary approaches to deter companies from taking the risks that led to the disaster in the Gulf: regulations establishing environmental and worker safety standards, and civil liability that serves both to discourage reckless corporate behavior and to compensate its victims. In the case of the BP spill, lax regulation and enforcement made the spill possible, and outdated, overly corporate-friendly statutes could significantly limit what victims can force BP to pay in damages.
Full textHaving voted to repeal health care legislation, House Republicans have now taken aim at government regulations, describing efforts to protect people and the environment as “job-killing.” This claim conveniently papers over the fact that it was the lack of regulation of Wall Street that tanked the economy and caused the current downturn. But nonetheless, seeking rhetorical points to boost their anti-regulations campaign, House Republicans are trumpeting a recent report, done for the Small Business Administration’s Office of Advocacy. The report, authored by Nicole Crain and Mark Crain, claims that regulation cost the U.S. economy $1.75 trillion dollars in 2008. Upon examination, it turns out that the estimate is the result of secret calculations, an unreliable methodology and a presentation calculated to mislead.
Crain and Crain’s $1.75 trillion estimate is far larger than the estimate generated by the Office of Management and Budget (OMB)—the official estimate of the aggregate costs and benefits of federal regulations prepared annually for Congress. The 2009 OMB report, based on data from federal agencies under the Bush and Clinton Administrations, found that in the ten years ending in 2008 annual regulatory costs ranged from $62 billion to $73 billion (converted from 2001 into 2009 dollars). Crain and Crain attribute this massive difference to the fact that their report considers many more rules than do the annual OMB reports, including rules with estimated costs less than $100 million, rules that were put on the books more than 10 years ago, and rules issued by independent regulatory agencies.
A new report today by the Center for Progressive Reform (Setting the Record Straight: The Crain and Crain Report on Regulatory Costs) shows that much more is at work than that. In areas where the OMB and Crain and Crain calculations overlap, Crain and Crain use the same cost data as OMB, but, unlike OMB, which presents regulatory costs as a range, Crain and Crain always adopt the upper end of the range for inclusion in their calculations. More significant, Crain and Crain’s calculations for the regulations not covered by OMB’s report appear to be based largely on a decidedly unusual data source for economists – public opinion polling, the results of which Crain and Crain massage into a massive, but unsupported estimate of the costs of “economic” regulations. Because Crain and Crain have refused to make their underlying data or calculations public – apparently even withholding them from the Small Business Administration office that contracted for the study – it is difficult to know precisely how they arrived at the result that economic regulation has a cost of $1.2 trillion dollars, comprising more than 70 percent of the total costs in their report.
Full textRepublican legislators have been scheming for years about ways that they can slow down, if not stop, needed health, safety and environmental regulations. But their latest effort, though creative, is perhaps their most ill-conceived. They’re calling it “The REINS Act” (in the last Congress, H.R. 3765 sponsored by Rep. Geoff Davis (R-KY), S. 3826 sponsored by Sen. Jim DeMint (R-SC)), and, if adopted, no new "economically significant" regulations would take effect unless affirmatively approved by Congress, by means of a joint congressional resolution of approval, signed by the President. The proposal is a genuinely radical departure, plainly designed to gum up the regulatory works. Republicans have promised to hold congressional hearings on the bill early this year.
The REINS Act would make Congress the final arbiter of all significant regulatory decisions. While superficially this may seem like a good idea – after all, Members of Congress are elected and regulators are not – the REINS Act would replace what is good about agency rulemaking with what is bad about the legislative process. Neither Members of Congress nor their staffs are likely to have sufficient scientific, engineering and economic expertise regarding complex regulations. And, unlike agencies, Congress does not have to have good policy reasons for refusing to approve a regulation. Instead, the approval process is likely to be nakedly political, reflecting the raw political power of special interests and the large campaign donations that they give. Since agency rules are subject to judicial review, the federal courts ensure that regulations are backed up by reasonable policy justifications and are consistent with the statutes passed by Congress.
The legislation also stacks Congress’s procedural deck against approval of regulations. Since the bill does not clearly prohibit a filibuster in the Senate, it would empower a few, or even one Senator, to block regulations. Moreover, under the terms of the bill, Congress has only a 90-day window to approve a regulation, and if both houses fails to do so during that time period, the regulation is deemed to have been rejected, and Congress is barred from subsequently voting to approve the regulation or one “substantially similar” to it for the remainder of that Congress. The 90-day requirement is a particularly high hurdle indeed in the United States Senate, a body where even legislation popular on both sides of the aisle can easily get bogged down.
Full textA particularly revealing story in The Washington Post this weekend reported on a sordid tale of regulatory failure that may have helped contribute to this spring and summer’s outbreak of outbreak of egg-borne salmonella that sickened more than 1,900 people and led to the largest recall of eggs in U.S. history. In an agonizing case of closing the chicken coop door after the tainted eggs had escaped, FDA finally adopted a long-delayed regulation in July – two months after the outbreak – that might have helped prevent it. And this month Congress may give FDA new authority to regulate the safety of food in light of the salmonella case and other highly publicized outbreaks of food poisoning in the last few years.
Yet, under a proposal floated in an op-ed by Sen. Mark Warner (D-VA) in the same newspaper two days later, regulators would be forced to drop existing regulations in order to pass needed new regulations. So, for example, FDA might have to drop a regulation covering peanuts in order to promulgate additional regulations for eggs.
Senator Warner’s proposal would require federal agencies to identify and eliminate an existing regulation of similar estimated economic cost for each new regulation they want to add. The Chamber of Commerce touts it as an "interesting proposal" but it's not actually a new one. In fact, I testified before the Senate Committee on Government Operations in opposition to the "regulatory budget" idea in 1999, and the proposal dates back to at least the 1980s (see the American Enterprise Institute's Chris DeMuth, writing in 1980). Nothing that has occurred since makes this into a good idea. As we unfortunately know, it was a lack of regulation, not too much regulation, that was responsible for the collapse of the financial sector, the event that precipitated the economic recession from which we now suffer. And it has been too little regulation and enforcement that has led to the almost yearly outbreaks of food poisoning that have killed many and injured thousands more. See also: the West Virginia mine collapse, the BP oil spill, and runaway Toyotas.
Full textCross-posted from the Huffington Post.
Eager to blame the state of the economy on the Administration, House Minority Leader John Boehner recently tried to argue that Administration's regulatory agenda is standing in the way of recovery. Sadly for Boehner, he tried to make that case shortly before the fifth anniversary of Hurricane Katrina, and while the smell of the BP oil spill still lingers in the Gulf. By any reasonable measure those two incidents are among the costliest and most devastating examples of the human and monetary costs of lax regulation.
In a letter to President Barack Obama, Boehner criticized the Administration's plans to implement 191 rules with potential economic costs greater than $100 million, arguing that "uncertainty" in the business community about the fate of the regulations is "contributing significantly to the ongoing difficulty our economy is facing." Apparently, Boehner and other opponents of regulation are betting that we'll forget the cost of regulatory failure as they repeat their mantra that regulation costs a lot of money, and that it cannot be good for the economy.
This claim is false on two counts. First, it ignores the reality that the costs associated with regulatory failure usually far outweigh the expense of effective regulation. Various federal agencies failed to protect the Gulf Coast region - first from the impact of Katrina, and then in the case of the BP Oil Spill. The Katrina failure cost billions of dollars, and more than 1,800 lives, to say nothing of the massive disruption to thousands of dislocated families, costs that cannot be measured.
Full textCross-posted from ACSblog.
The Center for Progressive Reform (CPR) today released a white paper examining "plausibility pleading"-the Supreme Court's heightened pleading standard that plaintiffs must satisfy in order to bring their claims in federal court. The paper, Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants, comes after the Court's decision one year ago this week in Ashcroft v. Iqbal that this standard applies to all types of federal cases. The Court first created this standard in Twombly v. Bell Atlantic, three years ago.
Iqbal and Twombly will lead to the dismissal of meritorious cases, thereby weakening the civil justice system and making it more difficult to hold businesses or the government accountable for wrongful actions. Increased dismissals will also deprive federal regulators of vital information needed for improving the regulations that protect people and the environment. Our paper therefore calls on Congress to pass legislation to reverse these decisions.
The pleading standard plays an important role in civil litigation. Would-be plaintiffs unable to draft a complaint that satisfies the pleading standard aren't able to bring their case before a judge or jury in federal court. If the pleading standard is too lenient, too many non-meritorious cases will be able get into court, clogging up the federal judiciary. But if the standard is too high, meritorious cases will be terminated early, denying justice to deserving plaintiffs.
Full textThe Workforce Protections Subcommittee of the House Education and Labor Committee held a hearing Tuesday on the Protecting America’s Workers Act of 2009, legislation that would, among other reforms, modernize workplace health and safety penalties. More than a decade ago, I testified at a similar hearing in the House of Representatives on the same subject. The need for stronger OSHA penalties was apparent then, and it is no less apparent today.
The hearing is memorable to me because I testified along with a father whose son was killed on a construction site while working at a summer job between years of college. His son was working on one of the floors of a multi-story building under construction. He was asked to carry some construction materials across the floor of the building from one side to the other. He piled up the materials in his arms with the result that he could not see clearly in front of himself. When he walked across the floor, he stepped into the hole that was the elevator shaft, falling to his death at the bottom. The contractor had not put up a barricade around the hole in the floor, as it was required to do in order to prevent just such accidents.
OSHA has done much good; workplaces are safer than they were at the time that the agency was founded. But one does not have to look very far to find stories like the one told that day at the hearing. Workers continue to be killed and seriously injured in accidents related to OSHA violations.
Full textWhen my children were growing up, they loved the “Where’s Waldo” book series. Each page had an illustrated picture chock full of people and objects; hidden somewhere among the mass of detail was a small picture of a cartoon character named Waldo. When the Toyota Motor Corporation announced this week that it was stopping the production and sales of several of its car models because of a dangerous problem with unintended acceleration, we had a “Where’s Waldo” scenario. The National Highway Safety Administration (NHTSA), the regulator which is supposed to protect the American public from this sort of event, is nowhere to be seen, hidden inconspicuously in the background, hard to spot because of its disturbingly minor role in the unfolding events.
As I wrote earlier, Toyota had previously announced that it would replace the accelerator pedals on about 3.8 million vehicles in the United States because the pedals could get stuck in a floor mat. In the meantime, Toyota advised owners to remove the mats to avoid the problem. But, as I also noted, there were reports of cars accelerating when there were no floor mats involved. Until its most recent action, Toyota resisted this claim, blaming the problem on the design of the accelerator, and planning to address the problem by installing a redesigned accelerator that would not become entangled in a floor mat. For the first time, the company said it might be possible that there was an acceleration problem that had nothing to do with the floor mat, although, with an eye on minimizing potential lawsuits, the company also said that if there was a problem, it was a rare one.
When the Washington Post called NHTSA for comment, it initially refused, maintaining its Waldo-like appearance. The agency has since opened up, arguing in articles appearing today that it has been pressuring Toyota on the issue. It's troubling, though, that it took so long for the broader recall to be instituted and for the new sales to be halted.
Full textAs reported in a post Saturday, OMB has become the epicenter for industry efforts to head off an EPA regulation concerning coal ash. There have been 17 meetings between industry interests and OMB officials. When questioned about the large number of meetings, an OMB spokesman said, "This has been a very regular, very normal deliberative process on a very complex rule.” For progressives who had hoped that OMB in the Obama administration would not replicate OMB in the Bush administration, this is disappointing news.
Industry swarmed to OMB after EPA had submitted a draft rule on coal ash to OMB for its approval. Under a presidential order, agencies like EPA must submit significant new regulations, like the coal-ash rule, to the White House for review prior to the time that they are officially proposed. Unhappy that their efforts to persuade EPA to propose a different rule had not worked, industry groups went to the White House to get the draft rule rewritten. The industry tactic is time-honored. In Republican administrations, OMB opened its door to industry interests, and it regularly intervened to force agencies to weaken regulatory proposals. Public interest groups have been watching OMB in the Obama administration to see if this practice might change.
James Goodwin, a CPR analyst, was one of the first to draw attention to OMB’s multiple meetings concerning the coal ash rule. Goodwin also found that OMB was regularly meeting with industry groups on other issues, but seldom meeting with public interest groups. CPR’s president, Rena Steinzor, has written OMB objecting to this unbalanced approach.
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