President Obama’s op-ed in the Wall Street Journal this morning touted EPA’s “deregulation” of the artificial sweetener saccharin as a positive development for America. Inadvertently, the president made EPA look silly for having regulated the stuff in the first place. The use of this example was also unfortunate because EPA’s decision to deregulate had little consequence. Here’s the back story.
Beginning in the 1970s, scientists discovered that if you feed large quantities of saccharin to rats, they develop cancer. As a result, products containing saccharin were required to carry a warning label, and saccharin went on the lists of “hazardous substances” potentially subject to the Superfund toxic waste cleanup and hazardous waste regulations, as did all carcinogens. This result seemed counter-intuitive and industry lobbyists working against Superfund’s renewal in 1984-87 ridiculed EPA with the question: “If I spill a truckload of Tab, do I create a Superfund site?” Of course the answer was no. EPA did not have the time, the money, or grotesque lack of judgment to even consider pursuing such idiosyncratic problems, even if they had occurred.
Meanwhile, saccharin got a lot of bad publicity, and manufacturers of saccharin hustled to perform studies showing that in the amounts consumed by humans, the sweetener was safe. But saccharin, apparently through some administrative oversight of the Bush EPA, remained on the Superfund list. In the fall of 2010, Obama’s EPA delisted it, in response to a petition from the Calorie Control Council.
Full textSixteen months ago, President Obama stood in the well of Congress and issued a ringing call for a progressive vision of government. Working to persuade Members of Congress to adopt health care reform, he said that “large-heartedness…is part of the American character. Our ability to stand in other people's shoes. A recognition that we are all in this together; that when fortune turns against one of us, others are there to lend a helping hand.” Many took comfort from that vision, the first avowedly affirmative one we had heard from a President about the government he leads in many a year.
Since then, much of the President’s domestic agenda has been adopted, and a mid-term election “shellacking” has intervened. And now, President Obama, with the 2012 election drawing ever nearer, is embracing a far less generous vision. In an op-ed on the opinion pages of today’s Wall Street Journal, truly the belly of the conservative beast, the President embraces a frame for the coming discussion about the role of regulation in society that is right out of the Republican hymnal, calling for “balance” between safety and economic growth, and bemoaning regulations that sometimes “place[e] unreasonable burdens on business—burdens that have stifled innovation and have had a chilling effect on growth and jobs.”
He also used the op-ed to announce a new initiative “to review outdated regulations that stifle job creation and make our economy less competitive.” By casting the discussion in those terms, the President swallows the GOP’s frame for the debate hook, line, and sinker.
Full textDespite its strong condemnation of the industry-wide problems that caused last year’s BP Oil Spill, the report today from the President’s commission waivered on a crucial subject: it significantly embraced the essentially self-regulatory British "Safety Case" model of regulation that industry and its consultants have been promoting. So while the commission has done some terrific work, one of its key recommendations is very disturbing. The safety case approach ultimately leaves to the oil companies, rather than regulators, the difficult but crucial work of making sure another rig does not explode. We can do better, if Congress gives the regulators adequate funding, moves them to an agency like the EPA or OSHA whose mission is to crack down on bad actors, and gives them the authority they need to make the oil industry internalize the American people’s expectation that it operate safely.
A number of industry advocates promoted the British model; members of the Deepwater Horizon Study Group (an ad hoc group of academics headquartered at the University of California/Berkeley) suggested the concept in a letter to the Commission; and the Department of the Interior has been reportedly considering it. Given the popularity of self-regulation for the oil industry in a number of countries, it is extremely unfortunate that the Commission missed the opportunity to set a higher standard for America. Instead, it said safety cases should be part of a future regulatory system. It wrote (p. 252-253):
Full textGovernment agencies that regulate offshore activity should reorient their regulatory approaches to integrate more sophisticated risk assessment and risk management practices into their oversight of energy developers operating offshore. They should shift their focus from prescriptive regulations covering only the operator to a foundation of augmented prescriptive regulations, including those relating to well design and integrity, supplemented by a proactive, risk-based performance approach that is specific to individual facilities, operations, and environments. This would be similar to the “safety case” approach that is used in the North Sea, which requires the operator and drilling rig owners to assess the risks associated with a specific operation, develop a coordinated plan to manage those risks, integrate all involved contractors in a safety management system, and take responsibility for developing and managing the risk management process.
Salmonella in eggs, peanuts, tomatoes, and spinach; and melamine in pet food and candy imported from China… With a regularity that has become downright terrifying, the food safety system in the United States has given us ample evidence that it has broken down completely. And so, in a small miracle of legislative activism, Democrats in Congress finally mustered the will and the votes to act, passing H.R. 2751 yesterday, not for the first time, but for the second time in the Senate and the third in the House. (A mistake on a technicality—Senate failure to follow an arcane procedure that allows everyone to pretend the bill it just passed originated in the House, where all tax legislation is required by the Constitution to begin its journey into law.)
Many people deserve credit for this December miracle, although my hat is especially doffed for Representatives John Dingell (D-MI) and Henry Waxman (D-CA) in the House and Senator Richard Durbin (D-IL). Dingell, the longest serving member of the House, had taken to calling the legislation “my bill” as in “where’s my damn bill?” growled with warm ferocity to his staff whenever the matter arose in his mind during the long months of waiting for the Senate to take action.
The new law covers the 80 percent of the American diet—everything but beef and poultry—that is regulated by the Food and Drug Administration (FDA). The old law it replaces was so weak that it did not give the agency authority to order recalls of poisoned food. Instead, the agency had to depend on the voluntary cooperation of food processors. The situation was so unbearable that a rare coalition evolved, including the Grocery Manufacturers, consumer groups, the Center for Science in the Public Interest, and the Pew Center’s project on chemicals and food.
The new law gives the FDA dramatically expanded authority to inspect, recall, and punish the purveyors of tainted food. It even goes so far as to require the FDA to inspect all the food processing facilities in the U.S. a minimum number of times—the first time Congress has been that prescriptive in instructing an agency how to do its job in any health, safety, or environmental status other than the law that requires the Department of Agriculture to have a representative present whenever cattle are slaughtered. Finally, the law requires importers of food from abroad to certify that it was produced under standards equivalent to the American system, a very tall order considering the strange origins of food we import from places like China, where regulation is non-existent.
But we have too many statutes on the books these days that have become dead letters because the agencies charged with the responsibility of implementing them have such scarcity of resources that they cannot even make a respectable start on exercising their new authority. If the new Republican majority in the House decides not give the FDA enough resources to get a grip on its new responsibilities, this major health and safety accomplishment of this troubled Congress will be undercut.
Full textOne of the most powerful sleights of hand achieved by Republicans during the last election cycle was their renewed declaration of war on regulation. It’s no secret which of their interest groups are most passionate about this aspect of their agenda. Tuesday's LATimes previewed a plan by the Chamber of Commerce, to be announced today, to further unleash its lobbying legions against regulations as soon as the new congress is anointed. But it's unlikely the Chamber will get too specific on which popular regulation it wants to kill, just as Republicans have neglected to specify which budgets will be cut. First build to a fever pitch and then—only at the last minute, mind you—admit the substance.
No surprise there. As the Chamber and John Boehner know all too well, dead regulations, just like specific budget cuts, inevitably generate mourners. West Virginia’s Senator-elect Joe Manchin may have shot a mock-up of federal climate change legislation in a campaign ad, but ask his constituents whether the Mine Safety and Health Administration should get more authority to prosecute the people who caused the Big Branch mine disaster and you’ll get a different answer. Or consider the strident demands of businesses along the Gulf of Mexico shore that the Obama Administration lift the drilling moratorium. Then imagine how they will react when there’s another spill and federal inspectors are implicated in the negligent operation of the rig that produces it.
Even as the Chamber is working on erecting new barriers to needed federal regulation, a new academic report out today Tuesday will, I fear, suggest yet another theater of war for industry: the states. The 441-page report comes from the Institute for Policy Integrity at the New York University School of Law, the brainchild of cost-benefit analysis enthusiasts Ricky Revesz and Michael Livermore.
The report contains an exhaustive review of regulatory review policy in the 50 states (and DC and Puerto Rico), rightly noting that regulation in the states has long gotten surprisingly little attention and analysis. The states were judged on several good criteria: for example, that regulatory review should not unnecessarily delay or deter rulemaking and should promote transparency and public participation. But the report also advocated the troubling notion that economic analysis, if done right, is the key to reaching all the right policy outcomes.
Full textThere’s a lot of punditry left to be committed about whether and how the GOP majority in the House and the enhanced GOP minority in the Senate will work with the Obama Administration. I’m not optimistic. But even if the President and House Republicans are able to find some small patch of common ground, the hard reality that progressives need to swallow is that whatever major progressive legislation will bear Barack Obama’s signature has already become law, at least for his first term.
The same is not true, however, for what Barack Obama might accomplish simply by infusing the health and safety agencies in his Administration—from EPA to OSHA to FDA—with a sense of urgency, clearing away barriers to regulatory progress within his own White House, and insisting that the agencies enforce existing laws with newfound vigor. A string of catastrophes have shown that we need proactive government at least as much in these areas as we need cops on the beat in neighborhoods and airport security, even as Americans claim to hate government in a larger sense.
Resurrection of these agencies was a low priority for the President during his first two years. He made great appointments, but then left the agencies to cope with budget shortfalls and inadequate legal authority. As just one especially shocking example, FDA cannot order a recall of salmonella-poisoned food but instead must depend on the producer’s cooperation to get the food off the shelves. Worst of all, Cass Sunstein, his appointee to the post of “regulatory czar,” where he essentially supervises the agencies from the White House, has in many ways continued the Bush II pattern of red tape and neglect. “Yes we can” became “No we won’t” in too many instances. His small office continues to serve as a lobby for any powerful business interest—from coal companies to chemical manufacturers—intent on consigning the cops to desk duty.
Republicans followed the pattern of the Bush II Administration, screaming about overregulation and even going so far as to protest the rough treatment of British Petroleum in the Gulf. As usual, they gained traction by ranting against government writ large, not by acknowledging the need—no, the expectation and rock-solid demand—that these first-line responders keep Americans safe.
The predictable result was a mixed record--some regulators seized the opportunity and moved briskly ahead. Others bogged down.
All of that is squarely within the President’s power to fix. But will he?
Full textWhatever happens at the polls this November, President Obama will get a chance to turn the electoral tide in 2012, perhaps without the loadstone of recession around his political neck. And, while the economy and many other issues will continue to occupy the President for the best and most obvious of reasons, it’s fair for everyone in the country to expect him to multi-task. For progressives who care about the environment, I’d suggest one critical criterion for judging the Administration: Can the President and his senior appointees stop running from the bogus claims that they stand for big, bloated, ineffective government and instead explain to the American people why government makes a vital difference to our daily lives?
Just last week we got another distressing, preliminary answer to this crucial question when the Administration stiffly dismissed the preliminary findings of staff at the bipartisan National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling. The staff working papers provide discouraging insights into White House efforts to micro-manage the frantic efforts of a phalanx of agencies, while trying to get a grip on a catastrophe incubated by Bush II.
According to the staff report, it turns out that for the first several weeks, Coast Guard Admirals Thad Allen and Mary Landry systematically underestimated the amount of oil pouring from the broken well by more than 1,000 percent (5,000 as opposed to 60,000 barrels flowing each day). By taking an “overly casual approach” to these figures, the staff write, “the federal government created the impression that it was either not fully competent to handle the spill or not fully candid with the American people about the scope of the problem.”
Full textAs expected, the Environmental Protect Agency issued its draft Total Maximum Daily Load (TMDL) for the Chesapeake Bay this afternoon – essentially a cap on total pollution in the Bay, as well as caps on each of 92 separate segments of the Bay. EPA also issued assessments of each of the affected states’ Watershed Implementation Plans (WIPs), evaluating proposals for implementing the TMDL from Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia.
As I said in this space this morning, the TMDL is a major step forward. Reading through the draft reinforces my view that there’s good reason to hope that, decades from now, we’ll look back on the issuance of the TMDLs as a watershed moment in the protection of the Bay. It’s been a very long road to this point, with a couple decades of false starts. And we have a long road ahead of us yet. But EPA has stepped up to the plate to its great credit, and to the credit of the Obama Administration.
Over the years, the states have treated the Bay badly, for the most part buckling to industry or other political pressure to avoid meaningful protections. In my home state of Maryland, agri-business has been one such powerful force against progress, for example. As part of its release today, EPA also offered up comments to the states on their draft WIPs, and, again to its credit, EPA seems to mean business. It identified “serious deficiencies” in the plans from five states – Delaware, New York, Pennsylvania, Virginia and West Virginia, and “minor deficiencies” in the plans from Maryland and the District of Columbia. The message EPA Administrator Lisa Jackson is clearly intending to deliver to the states should be clear: there’s a new sheriff in town, and she means business.
It’s long past time.
Full textWith more than 7,000 miles of coastline and thousands of stream and river miles and lake acres, the Chesapeake Bay is the crown jewel of the region’s natural resource heritage. And its value to the region's economy is immense--$1 trillion according to one frequently cited estimate. But the ecological health of the Bay is tenuous. Primary pollutants are nitrogen, phosphorous, and sediment. These nutrients have accumulated in the Bay to unsustainable levels, contributing to algal blooms and dead zones during the summer months.
For 20 years, a moveable feast of bureaucratic in-fighting known as the Chesapeake Bay Program* has bobbed and weaved, making pretend promises to the public and, for as long as they could get away with it, posing the Bay State governors at annual photo ops with their hair blowing in the wind and their eyes misting in response to their own Bay-Love rhetoric. So long as that love does not involve commitments to pollution reduction that would cost real money, the scam was viable. But after missing two highly publicized deadlines for reducing the nutrients that render large areas unfit for fishing and recreation, Congress wheeled around and started withdrawing funding for this PR fest. And we wonder why people hate government.
With the election of Barack Obama and the appointment of “eco-warrior” Lisa Jackson as EPA administrator, Bay cleanup efforts may be getting a big stick to go with its many baby carrots. Sometime later today, EPA will issue the Chesapeake Bay Total Maximum Daily Load (TMDL) – a numerical cap on the total pollution that can be dumped into the Bay. For years now, the Bay states have permitted pollution sources, from publicly owned sewage treatment plants to privately owned factories without really paying attention to the cumulative load—sadly measured in millions of gallons of watery waste—pumped into the Bay’s tributaries. After years of effort involving the best and brightest scientists, engineers, and other technicians in the country, EPA will cut that Gordian Knot, setting forth 92 individual caps on pollution loads for each of 92 segments of the Chesapeake Bay, 89 of which are considered “impaired,” meaning that the water is unfit for its designated use as a source of drinking water, place of recreation, or fishing area. By 2025, the Bay states and the District of Columbia must have accomplished—through binding regulations, far more stringent permitting, and incentive programs to reduce agricultural pollution—both the 92 individual TMDLs and, collectively, the overall TMDL.
Or, in other words, the goal posts are anchored into the ground, the game has real rules, and unless Congress interferes, we will have accountability at last.
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Today Jacob Lew heads to the hill for two Senate hearings on his nomination to be the new director of the White House's Office of Management and Budget. He is expected to be confirmed.
The hearings will likely focus on budgetary issues, but no less important is another division of OMB: the Office of Information and Regulatory Affairs (OIRA), the office charged with coordinating regulatory policy. The policy context is this: from salmonella-laced eggs to the BP oil spill, we are in a year of regulatory disasters. No one agency or individual is responsible for the breakdown; the problems are pervasive and the fixes often not easy.
The OMB could be playing a positive role in supporting regulatory agencies and helping to stop the next crisis before it happens. Instead, it has too often busied itself meddling in agencies' processes, and rushing to stand up for industries with questionable claims of high regulatory compliance costs. Meanwhile, in the real world, toys are tainted with lead, the coal ash ponds are leaking chemicals into the water, and we move from one food contamination episode to the next.
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