Following up on President Obama’s January Executive Order calling for agencies to conduct a regulatory “look-back,” the Administration today released a target list of health, safety, and environmental standards to be reviewed by agencies in the coming months, with an eye toward eliminating or modifying them.
The President’s January announcement was driven by politics, and from all appearances, the process of reviewing these regulations will be as well. In an op-ed in today’s Wall Street Journal, and in a speech today at the American Enterprise Institute – note the conservative venues chosen – “Regulatory Czar” Cass Sunstein, Administrator of the White House Office of Information and Regulatory Affairs, not only unveiled the target list but once again deployed the kind of anti-regulatory rhetoric one might expect from the Chamber of Commerce. Sunstein asserts that "Our goal is to change the regulatory culture of Washington by constantly asking what's working and what isn't. To achieve that goal, we need to obtain real-world evidence and data." The ugly implication, and it's incorrect, is that agencies don't currently carefully examine real-world evidence and data.
Several points stand out. First, what the White House initially billed last January as an objective examination of regulations appears to have been transformed into a blatantly one-sided effort to loosen restrictions on industry while paying little heed to the numerous threats to public health and the environment that remain unchecked. The Administration previously said that in addition to looking for regulations that are "excessively burdensome," it would also look for rules that are "insufficient" and might needed to be “expand[ed].” But today the notion of strengthening safeguards seems to have dropped out of the conversation.
Second, the Administration’s pandering to industry on this issue is in danger of doing long-term damage to the important business of protecting Americans from a variety of hazards. For one thing, the entire frame for this conversation, the one chosen by the White House in the President’s January op-ed in the Wall Street Journal, is that regulation is bad for the economy and needs to be trimmed back. In fact, regulation strengthens the economy, saves lives, keeps American healthy and safe, and in a variety of ways contributes to Americans’ quality of life. In addition, it’s worth noting that many of the rules identified today are not examples of bad rulemaking, but rather of rules that have simply been overtaken by technology—a reexamination of a rule requiring vapor recovery systems at gas stations that has become less crucial because automobiles now have similar technology on-board, for example. Such rules made sense when adopted, and should be updated as needed. But spare us the “stupid regulation” rhetoric, please.
Full textIn politics, repeating something over and over again can sometimes make it stick, whether it's true or not. From Reagan’s welfare queens, to the specter of “socialized” medicine leading to imminent communist takeover, these sorts of myths often start on the far right but then move surprisingly far to the center. And as the EPA has begun to move forward with regulating greenhouse gas emissions under the Clean Air Act, we've seen one of these myths begin to take shape. This time it’s the notion that the Clean Air Act is a bad tool for addressing climate change.
At the heart of it is this: a lot of regulated industries and their allies don't want any limits at all on how much carbon dioxide they can release into the atmosphere. But the Clean Air Act says that EPA must regulate any air pollutant that may reasonably be anticipated to endanger the public health or welfare and defines “air pollutant” very broadly. In 2007, the Supreme Court held that greenhouse gases are “air pollutants” under the Act, and ordered EPA to make a scientific judgment under Section 202 about whether the greenhouse gases emitted by cars and trucks “may reasonably be anticipated to endanger public health or welfare.” Making repeated reference to reports from the National Research Council and the Intergovernmental Panel on Climate Change finding conclusive evidence of human-caused global warming, the Supreme Court made clear that, in light of the scientific evidence, it would be difficult for EPA to find no endangerment.
Industry allies have taken various shots at EPA's authority to regulate greenhouse gasses, but the arguments range from incorrect to absurd. Fellow Member Scholar Dan Farber and I have just written a memo, Six Myths About Climate Change and the Clean Air Act, addressing these topics. In the short paper we respond to six sadly common claims:
The EPA can and will defend its authority in the courts, but that's not going to stop opponents from trying to attack it in the court of public opinion with myths like these. Our memo lays out how these claims are myths, and how the EPA has the law on its side.
Full textAround 6pm ET last night, after most reporters had wrapped up, EPA issued its long-awaited proposed cooling water rule. Under the Clean Water Act, this rule is supposed to protect the billions of fish and other aquatic organisms that are killed each day when they are squashed against intake screens or sucked up into cooling water systems at existing power plants and other industrial facilities. Unfortunately, the rule seems aimed more at protecting industry profits than fish. And in justifying the rule, EPA has taken a page right out of industry’s playbook, purporting to rely on cost-benefit analysis, even though no one can agree on how to attach a dollar value to a fish or an ecosystem.
Rather than requiring plants to use the sensible closed cycle cooling option, which reduces intake flows (and dead fish) by 95-98% by simply recycling the cooling water, EPA’s new rule would allow existing plants to continue to use the antiquated “once-through” cooling method as long as they attach buckets and other gizmos to their intake screens designed to try to catch fish that bounce off the screens and return them to open water.
As for the organisms that get sucked up through the screens and “entrained” in the cooling water system itself, EPA’s new rule simply punts. Reduction in death by “entrainment” is simply left to a case-by-case permitting process to be administered by the states. This puts an untenable burden on the states, which we've seen clearly lack the resources and expertise to make these determinations.
Particularly troubling is the prominent role that EPA appears to have given to cost-benefit analysis in justifying this toothless rule. You may remember that this rulemaking was in the news two years ago, when EPA’s last effort at drafting a cooling water rule for existing facilities went up to the Supreme Court. This case was closely watched in the environmental community because it presented to the Court the decades-old battle between industry and environmentalists over the use of cost-benefit analysis in environmental rulemaking. (Industry likes cost-benefit analysis and environmentalists hate it because it tends to undercount the benefits of environmental protection, which are hard to put a dollar value on.)
Full textWhen it comes to the use of cost-benefit analysis in setting environmental rules, it looks like President Obama's EPA has taken a big swig of industry’s Kool-Aid. We'll know for sure soon: The EPA has a March 14 deadline to issue its proposed Clean Water Act rule on cooling water intake structures at existing power plants and other facilities. But all signs seem to be pointing toward a highly formalized cost-benefit analysis resulting in a weak rule – and a lot of dead fish.
Lisa Jackson has hinted that the rule will create a relatively toothless case-by-case permitting regime rather than simply mandating the more environmentally protective closed-cycle cooling technology that some plants already use. And the agency’s development over the past six months of an elaborate, controversial, and frankly misguided study to try to divine the dollar value members of the public attach to preserving fish species and aquatic ecosystems suggests that they plan to shackle their decision-making to a highly formalized cost-benefit analysis that will suck up a lot of resources and provoke a lot of controversy, but ultimately fail to produce meaningful results.
If EPA does weaken the rule on the basis of cost-benefit analysis, it will be particularly disappointing, because when the U.S. Supreme Court ruled on this issue two years ago in Entergy v. Riverkeeper, the high court specifically gave EPA the latitude to jettison rigid cost-benefit analysis from its rulemaking process if it wanted to. Moreover, the Court expressed skepticism about the kind of highly formalized, fully monetized cost-benefit analysis that EPA seems to be headed toward in this rulemaking.
Full textA federal appeals court's decision on Friday refusing to block implementation of EPA’s first limits on carbon pollution from cars, power plants, and factories is good news for inhabitants of planet Earth. A coalition of industry groups, right wing think tanks, and the state of Texas had asked the court to grant a stay blocking EPA’s rules from going into effect while their litigation challenging those rules goes forward. But a three-judge panel of the D.C. Circuit Court of Appeals (including two very conservative republican appointees) wisely rejected that request.
All this started back in 2007, when the U.S. Supreme Court overturned the Bush EPA’s feckless efforts to avoid regulating greenhouse gases as air pollutants under the Clean Air Act. Nearly four years later, Obama’s EPA has finally taken the first baby steps toward fulfilling its obligations under the Clean Air Act to regulate carbon dioxide and the other emissions that cause global warming. Starting January 2, 2011, certain big new and expanded power plants and other large industrial facilities will have to meet fuel efficiency standards along with the other conventional pollution control requirements. And the average fuel economy standard for new cars and trucks will increase modestly to 29.7 miles per gallon for 2012 model year vehicles.
This is not some radical new regulatory program issued by a rogue agency intent on paralyzing American industry and running the economy into the ground, as the folks challenging them would have you believe. These are modest and incremental steps that move us just a little closer toward catching up with the rest of the world with respect to the common sense goal of energy efficiency.
Full textIt turns out there’s more than one way an offshore oil rig can kill a fish. Even when they’re not spewing oil into the ocean, oil rigs kill vast numbers of fish and other aquatic organisms in their daily operations by sucking them up into their cooling water intake systems, where they get squashed against screens and otherwise beat up by the mechanism. Power plants do it too, as does any industrial facility that circulates water for cooling. Congress recognized this problem four decades ago and so put a specific provision in the Clean Water Act directing the EPA to regulate cooling water intake structures. But there’s been a fight raging for years about just how EPA should carry out those responsibilities.
You may remember that the U.S. Supreme Court weighed in on this controversy last year in Entergy Corp. v. Riverkeeper, largely siding with industry to say that EPA could use cost-benefit analysis to set these regulations. Two weeks ago, the U.S. Court of Appeals for the Fifth Circuit weighed in as well, in a decision in ConocoPhillips, et al. v. EPA that essentially kicked another ball back into the Obama administration’s court. That might be good news for the fish, if the decision was simply left to Lisa Jackson’s EPA—the agency Congress entrusted with this responsibility in the first place. But with Cass Sunstein’s Office of Information and Regulatory Affairs (OIRA) likely to meddle in this rulemaking as it has in others, I’m afraid we may end up with a result that’s good for industry but bad for our already struggling aquatic ecosystems.
The Fifth Circuit’s ruling concerned the final “Phase III” of EPA’s regulation of cooling water intake structures, which applies to offshore oil rigs, small power plants and a bunch of other miscellaneous facilities. (Last year’s Supreme Court ruling was on Phase II—existing large power plants.) EPA’s approach to Phase III was a bit schizophrenic, which meant it had something for everyone to hate. In part of the rule, EPA declined to do cost-benefit analysis and imposed stringent requirements on new offshore oil rigs, which industry challenged. But in another part of the rule, relating to existing small power plants and manufacturers, EPA did do a cost-benefit analysis, and on that basis decided not to issue any regulation at all. Environmentalists challenged that part. In its decision two weeks ago, the Fifth Circuit rejected industry’s challenge and upheld the new facilities part of the rule, reiterating what the Supreme Court said clearly in Entergy—that EPA can but doesn’t have to use cost-benefit analysis when setting these regulations. As to the existing facilities portion of the rule, the court granted a joint motion by the EPA and the environmentalists to remand it back to the agency. That’s the ball that’s now in the Obama EPA’s court, along with the Phase II rule, which was remanded following the Supreme Court’s Entergy decision last year.
Full textWith characteristic audacity, the Wall Street Journal editorial page today is arguing against the precautionary approach to environmental policy that undergirds our system of environmental laws, even as the oil continues to gush into the Gulf of Mexico. Instead, they want to shift the burden of proof and only allow regulators to restrain corporate greed when the government can first quantify and monetize the environmental harm that will result and demonstrate that it outweighs the money to be made by taking environmental risks. The problem is, of course, that when you require cost-benefit analysis, the environment loses, because most of the values at stake on that side of the equation—human lives, air you can breathe, water you can swim and fish in—just can’t be measured in dollar terms.
The editorial writers of the Wall Street Journal lament that the disaster in the Gulf is causing a resurgence of the precautionary principle in environmental policy, which they claim was long ago “discredited” in favor of cost-benefit analysis. This battle is as old as the environmental movement itself. From the beginning, advocates of environmental protection have argued for a precautionary approach to environmental hazards, while industry has argued for cost-benefit analysis. But the Journal doesn’t quite get its history right. Despite the enormous amount of money they’ve put into this fight, industry hasn’t won—at least not yet.
Far from being “thoroughly discredited,” the precautionary principle is widely accepted throughout the world. It forms the basis for a whole host of international environmental treaties and agreements, including the Rio Declaration, negotiated by the first President Bush. And, as the Journal acknowledges, it undergirds the “architecture” of much of our domestic environmental law.
Full textCass Sunstein had barely begun settling in to his new position as Administrator of OMB’s Office of Regulatory Affairs (OIRA) in September, when OIRA released a draft of OMB’s 2009 Report to Congress on the Benefits and Costs of Federal Regulations. Today marks the deadline for submitting comments to OMB on the draft, and I joined CPR President Rena Steinzor and Policy Analyst James Goodwin in submitting comments.
We read this year’s report with interest, curious to see how the new administration would approach this annual ritual. While OIRA has in the past been a nerve-center of anti-regulatory ideology and the annual report a ritualized hymn to the virtues of cost-benefit analysis, we hoped Obama’s OIRA would use the annual report as an opportunity to fundamentally re-envision its mission – to perhaps re-invent itself as a resource providing positive and constructive assistance to the embattled, de-funded and demoralized federal agencies charged with protecting our health and environment.
Overall, we were disappointed. While this year’s report sanitized some of the more blatantly ideological material that had become a staple of past reports, the basic form and content of the report remain unchanged. It continues to waste inordinate time and resources on the inane and ultimately fruitless task of attempting to aggregate in dollar terms the overall costs and the overall benefits of dozens of regulations issued by a diverse array of federal agencies – rules that protect all sorts of intangible, non-market values: protecting the health of mothers and newborns, protecting endangered whale species, reducing respiratory and other health effects of ozone, reducing neurological damage to children. This year’s report concludes cheerily that the annual benefits of major rules issued by the federal government over the past ten were somewhere between $126 billion and $663 billion, while the annual costs of those regulations was just $51 billion to $60 billion. Phew! What a relief!
Full textImagine if the end of the world were coming and everyone was just too polite to talk about it. That’s been the eerie feeling I've gotten over the past eight months listening to the President talk about energy policy. Not wanting to be a downer, he couches his energy talk in positive spin: We’re going to invest in the new clean green economy, create jobs, sell American ingenuity and know-how around the world, and reduce our dependence on foreign oil. Missing is any mention of the reason we’re going to all the trouble of undertaking a vast and expensive transformation of our well-entrenched carbon economy in the first place: all those coal plants and gas guzzling cars threaten to end life as we know it on this planet (not my words – NASA climate scientist Jim Hansen’s). Just a minor detail – but one worth mentioning, perhaps?
It was refreshing, then, to hear President Obama acknowledge the real issue – that pesky little end-of-the-world problem – at a speech before the United Nations today. He talked about the stuff that’s been keeping climate scientists up at night for decades now: rising seas, storms and floods, drought and crop failure, families fleeing and becoming climate refugees, and the implications of all this for political stability and security around the world.
But then, he knew his audience. He was talking to a bunch of U.N. policy wonks to whom none of this was particularly surprising or controversial.
But he needs to do more. President Obama needs to use his gift for high-minded oratory and his bully pulpit to take the message to the American public.
Full textThe Supreme Court today upheld a decision from the Bush administration's EPA that was good for industry and bad for the environmental health of our rivers and estuaries. But the majority opinion by Justice Scalia was written narrowly in a way that gives the Obama administration the leeway to approach these kinds of decisions in a more productive way. I'm hopeful they will seize that opportunity and avoid using cost-benefit analysis to set environmental standards in this case and beyond. Full text