The below is testimony (PDF) given today by CPR President Rena Steinzor at the EPA's public hearing on coal ash regulation. The hearing, in Arlington, VA, is the first of seven; the public comment period has been extended to November 19. See CPR on Twitter for updates from the hearing.
We are all familiar with the psychological studies that have become a cottage industry at American universities. Consider this one. A presumably dead cockroach is “medically sterilized”—and I honestly do not know what that means—and then dipped into a glass of juice in front of a group of people. The purpose: to gauge the test subjects’ willingness to drink the juice after the cockroach is removed. To the researchers apparent surprise, the people—all victims of an irrational phenomenon known as “stigma effect”—would not drink the juice, although they were willing to take a sip if the cockroach was merely laid to rest peacefully beside the glass, as opposed to dunked inside it. As amazing, they refused to drink the dunker juice, even if it was placed in a freezer for one year or the cockroach was dipped in the juice very, very quickly. So, conclude the researchers, “while shunning may have evolved from an adaptive response to avoid contaminated food, it can be triggered in inappropriate circumstances.”
Now why on earth am I bringing up this bizarre experiment in the context of this perfectly staid hearing on a hyper-technical EPA rulemaking proposal, which covers—count ‘em—138 pages in the Federal Register, leaving many supposedly more relevant points to be addressed by witnesses today? I am telling you the cockroach story because it is at the root of the reasons why the OMB Office of Information and Regulatory Affairs (OIRA) mangled this rulemaking, constructing a fanciful but deadly cost-benefit analysis that predicts negative net benefits of as much as $239 billion if EPA regulates coal ash appropriately, as a special waste under subtitle C of the Resource Conservation and Recovery Act. Or, to put it more bluntly, electric utility executives who generate 136 million tons of coal ash annually will squander $239 billion of the nation’s resources over the next 50 years because, suffering from the stigma effect, they will send millions of tons of the stuff to lined landfills rather than dumping it in road beds and mine shafts.
Full textThis post was written by CPR President Rena Steinzor and Michael Patoka, a student at the University of Maryland School of Law and research assistant to Steinzor.
Last October, the EPA proposed to regulate, for the first time, the toxic coal ash that sits in massive landfills and ponds next to coal-fired power plants across the nation. The 140 million tons of ash generated every year threaten to contaminate groundwater and cause catastrophic spills, like the 1-billion-gallon release that devastated Kingston, Tennessee in 2008. The EPA recommended that coal ash be listed as a subtitle C “hazardous waste,” making it subject to federally enforceable disposal requirements under the Resource Conservation and Recovery Act (RCRA). But by the time that the Office of Information and Regulatory Analysis (OIRA) was through “reviewing” the agency’s proposal, the rule had been watered down to suggest a choice of three alternatives: the original proposal as well as two much weaker options. In addition, the accompanying regulatory impact analysis (RIA) had ballooned into an impenetrable, strictly quantitative cost-benefit analysis—one that systematically underestimates the benefits and overestimates the costs of subtitle C regulation.
Among the many shortcomings and biases of the RIA, of particular concern is the industry-fueled suggestion that a subtitle C listing would “stigmatize” the beneficial use of coal ash (in products like concrete and wallboard, as well as in road beds and farmlands), even though beneficially used coal ash would remain officially exempt from the rule. Because beneficial use is associated with valuable economic and environmental benefits, this highly speculative “stigma effect” is estimated to cost $233.5 billion in lost benefits—a cost that dwarfs any expected benefits of regulation by several orders of magnitude.
Full textDesperate to move a funding bill for Chesapeake Bay restoration out of the Senate Environment and Public Works Committee, progressive Senator Benjamin Cardin (D-MD) went into the scrum with one of the body’s most conservative members, James Inhofe (R-OK). After a struggle of uncertain intensity and duration, the two emerged, with Inhofe, who openly ridicules the idea of global climate change, firmly in control of the ball.
Cardin agreed to put his name on a dispiriting proposal that misses a crucial opportunity to enforce a central requirement of the Clean Water Act. The Act began cleaning up the nation’s waters by requiring those who discharge pollution into rivers, lakes, and streams to install the “best available control technology” – for example, equipment that removes the pathogens in raw sewage. This primary approach worked well for years, but as the population and industrial development grew exponentially, and U.S. waters became unacceptably dirty, other provisions kicked into action.
The second approach was the application of “water quality standards” that set the maximum level of pollution that could exist in “receiving waters” where the plants emptied their pipes. So, for example, if I run a big sewage treatment plant that discharges into the Potomac River from three pipes, and levels of fecal coliform (that's bacteria from human waste) rise above water quality standards set by the state of Maryland in that section of the river, officials should revise my permit to curtail how much I can discharge in the future until the waters get back to a healthy level.
Full textAcross the full spectrum of outside cognoscenti who are focused on the reality that a small office at the White House has final authority over the agencies charged with preventing catastrophes like the BP oil spill and the Big Branch mine disaster, one threshold assumption is sacrosanct. This tiny Office of Information and Regulatory Affairs, now headed by former Harvard Law professor Cass Sunstein, ought to operate in bright sunshine, disclosing fully its communications with the agencies so the public can see its impact on rules and other administrative activities. We have insisted on this point, our loyal opposition at the Center for Regulatory Effectiveness agrees with it, and no less a bipartisan body than the Government Accountability Office has found that such transparency is too often lacking. As a matter of fact, the goal is not at all abstract: the Executive Order authorizing OIRA, 12866 contains specific directives requiring such disclosure. The EO, issued by the Clinton Administration and continued under Presidents George W. Bush and Barack Obama, requires those transparency measures in order to deflect the perception that OIRA is a court of last resort for aggrieved industry groups and a killing ground for strong regulation. Indeed, Peter Orszag, director of the Office of Management and Budget and Sunstein’s boss, issued a memorandum in December 2009 assigning OIRA the task of enforcing transparency throughout the government.
So how has transparency fared during OIRA’s Sunstein era? Not so well. OIRA under Sunstein has not only asserted that any agency or department can condemn action by another agency in secret, it is apparently enforcing a policy that outside stakeholders seeking an audience with Sunstein or his political deputy, Mike Fitzpatrick, must not reveal the content of a meeting, at pain of blacklisting from future meetings.
Full textToday, the Senate appropriations subcommittee chaired by Senator Tom Harkin (D-IA) will discuss "Investing in Mine Safety: Preventing Another Disaster" and hear testimony from the notorious Don Blankenship, chief executive officer of Massey Energy, owner of the Upper Big Branch disaster where 29 miners lost their lives on April 5.
Workers safety and health advocates have posted calls over the past months to “send Blankenship to jail,” perhaps under federal racketeering laws, and the FBI opened an inquiry into potential criminal charges against company officials who may have bribed federal inspectors to keep the mines running despite these repeated violations. The relevant law is in fact remarkably straightforward, and even the evidence amassed in press accounts, by definition much less than the FBI could and should uncover, provides ample support for a strong case against Don Blankenship under the Mine Safety Act itself, which incorporates the “responsible corporate officer” doctrine crafted decades ago by the Supreme Court.
Under the doctrine, a corporate executive who knew or should have known that bad actions are happening, and who is a position to stop those activities, is potentially liable criminally under “public welfare” statutes like the Mine Safety Act, the hazardous waste laws, and the Food, Drug, and Cosmetic Act. Press accounts indicate that not only did Blankenship know that his mines were catastrophically unsafe, but actually did the opposite of correcting those conditions: he created such pressure to produce coal that workers were afraid they would be fired if took the time to correct blatant safety hazards.
Full textThis post is written by CPR President Rena Steinzor and CPR Policy Analyst James Goodwin.
President Obama appointed Lisa Jackson to head the Environmental Protection Agency (EPA) on December 15, 2008. Confirmed by the Senate on January 22, 2009, she is a Cabinet-rank member of the Administration and the first African American to serve as the public face of environmental protection for any administration. Whether she wears an EPA baseball cap and windbreaker to tour the waterfront of her native New Orleans, now threatened by the BP oil spill, or she sits in the witness chair with television lights in her face to testify before any one of the dozen congressional committees claiming a piece of her agency, Jackson rises or falls on her own merits. And she has mostly been rising, driving her 18,000 member staff to new levels of activity and invention.
How lamentable, then, that her first notable reversal was administered not by Mother Nature, Congress, the economy, or even her own mistakes, but rather by an unnamed squad of number-crunching economists working in the bowels of Peter Orszag’s Office of Management and Budget (OMB), and specifically within the Office of Information and Regulatory Affairs (OIRA), headed by Cass Sunstein. And what a nasty reversal it was. Taking a page out of the George W. Bush Administration’s playbook, the economists decided to second-guess Jackson’s judgment on how to deal with 1,000 or so leaking, unstable coal ash dump sites threatening communities across the country. A few days after announcing its proposal to the public, EPA at last gave us a peak behind the curtain of obscurity OIRA had erected around months of intensive industry lobbying, posting a red-lined version of the toxic coal ash regulatory proposal it sent over to the economists last October.
Full textOur loyal opposition at the Center for Regulatory Effectiveness has engaged in some very creative reading of legal opinions in order to breathe new life into a discredited anti-regulatory tool of the George W. Bush era: the Information Quality Act. This pesky little statute instructs the Office of Management and Budget to “provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal Agencies.”
Enacted as an appropriations rider in 2001, the seemingly innocuous restatement of the goal that the government should always strive to be accurate was the brainchild of Jim Tozzi, a former Reagan Administration OMB official, who has since used it to force internal reviews of EPA pesticide and sewage sludge regulations, among other items. Tozzi’s colleague William Kovacs of the Chamber of Commerce pronounced the statute “the biggest sleeper there is in the regulatory area,” predicting that it “will have an impact so far beyond anything people can imagine.” (For more, see an excellent 2004 analysis of these efforts by Washington Post reporter Rick Weiss and CPR’s 2006 white paper on the subject.)
In 2006, thankfully, a panel of conservative Fourth Circuit Court of Appeals judges deflated the high hopes of IQA proponents, in a case in which the Salt Institute (a trade association for the salt industry) and the Chamber of Commerce sought to use the statute to block federal action on the grounds that the information on which it was based was insufficiently vetted. The court showed them the door, declaring unambiguously: “By its terms, this statute creates no legal rights in any third parties. Instead, it orders the Office of Management and Budget to draft guidelines concerning information quality and specifies what those guidelines should contain. Because the statute upon which appellants rely does not create a legal right to access to information or to correctness, appellants have not alleged an invasion of a legal right ….” The plaintiffs had sought to use the statute to compel the federal National Heart, Lung, and Blood Institute to stop advising Americans that curbing their consumption of salt could lower their blood pressure. The three-judge panel probably saw some distasteful handwriting on the wall: open the courts to this kind of quibbling and their dockets would be overrun by arcane disputes over data large and small.
Full textEPA Administrator Lisa Jackson was in a tough position on coal ash. If you are African American and low-income, you have a 30 percent greater chance of living near a big pit of this toxic brew than a white American, so Jackson correctly decided that such an important environmental justice issue should be at the forefront of the Obama Administration’s agenda. But Jackson was also taking on Big Coal, a special interest historically near and dear to swing voters in Ohio and Illinois. Nevertheless, this sturdy “eco-warrior,” as she was recently dubbed by Rolling Stone, marched forward, right into the basement of the White House and the chilling influence of Cass Sunstein and the economists at the Office of Information and Regulatory Affairs.
Jackson’s tough, but as yet secret, regulatory proposal arrived in crisp fall weather, only to be greeted by a tsunami of industry lobbyists, who visited and revisited the Office of Information and Regulatory Affairs. By the time the spring flowers were out, Jackson was forced to take a pass on getting hard-hitting regulation on a speedy path to implementation. After the long scuffle with OIRA, she instead announced that EPA was considering two strikingly different alternatives, thereby postponing any definitive action for at least six months and, far more likely, a year or more. Then, to add insult to injury, she stepped in between angry activists and OIRA, trying in vain to slap lipstick on a not particularly cute pig.
Jackson called her mammoth 563-page Federal Register a “proposed rule” but in every reasonably understood sense of that term, it is nothing of the sort. Instead, it has what we can call an “OIRA/industry proposal;” an “EPA/environmentalist” proposal; and a proposal so bad that it has no parents. Because EPA is actively considering two very different approaches and potentially a third, unimaginably bad idea, no concrete target emerged from this latest round of negotiation. Instead, EPA will almost certainly have to go back and get another round of public comment on a single approach before making a final selection. Or, as EPA announced haplessly: “Given the inherently discretionary nature of the decision, the complexities of the scientific analyses, and the controversy of the issue, EPA wants to ensure that the ultimate decision is based on the best data, and is taken with the fullest possible extent of public input.”
Full textThe system of checks and balances devised by the Framers of the Constitution 220 years ago was all about the sharing of power. In practice, it makes for a messy flow chart, and lends itself to lots of inside-the-Beltway conversation about who’s in, who’s out, who’s winning and who’s losing. But as messy as the how-a-bill-really-becomes-a-law flow chart is, the structure within the White House itself usually features one constant: When the President says jump, staffers ask how high.
Every now and again, however, things get turned on their head, and the forces of bureaucracy manage to thwart Presidential will. That dynamic appears to be at work right now in the White House Office of Management and Budget, where Obama appointees Peter Orszag and Cass Sunstein, the director of OMB and Administrator of the Office of Information and Regulatory Affairs, respectively, seem to be operating in defiance of an Executive Order by President Obama. On March 17, 2010, several of my fellow CPR Board Members and I wrote to White House counsel Robert Bauer asking him to investigate Orszag and Sunstein’s clear violation of decisions made by this President with respect to regulatory review.
The most troubling practice is OIRA’s assertion of authority to review guidance documents from regulatory agencies, which include speeches, advice letters, electronic mail exchanges and other efforts to advise regulated parties about how to comply with regulations. OIRA typically reviews major regulations, and has an Executive Order authorizing it to do so, but guidance documents are another matter. This huge extension of OIRA’s field of operation was first established in the waning days of the George W. Bush Administration with the issuance of Executive Order 13,422. The Bush EO’s extension of this authority was criticized by progressives as an example of brazen overreaching that could paralyze the federal government’s efforts to regulate everything from financial services to pollution.
Full textIn a rare public appearance at the Brookings Institute Wednesday, Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein is quoted by BNA’s Daily Report for Executives saying that his ambitious plans for revamping Executive Order 12,866 – the document that governs much of the process of regulating, and particularly OIRA’s role in it –have been tabled for the time being as he and his staff study the lengthy comments presented by a broad range of industry and public interest groups. “So what we’ve been doing under the existing framework is working to implement the President’s agenda in a way that is also alert to the content of the comments we’ve gotten,” he explained.
Meanwhile, outside the event, a small group of demonstrators, including one dressed as Sesame Street character Oscar the Grouch, demonstrated against “Ash Sunstein,” whom they accused of working to kill an EPA proposal to regulate the disposal of toxic metal-laced coal ash that is now dumped into unlined pits in the ground. You can see a snippet of both the protestors and Sunstein’s remarks on YouTube.
The juxtaposition of the two events had that quirky edge that, well, makes democracy and free speech entertaining! Of course, Sunstein has had more than his share of free speech aimed at him since he was nominated. CPR Member Scholars raised concerns early on about his embrace of cost-benefit analysis, a tool that the Bush Administration used to water down or kill outright all kinds of needed protective regulations, particularly environmental ones, and we’ve stayed after OIRA since then. But Sunstein also came under figurative semi-automatic fire from Second Amendment “enthusiasts,” whose distortions of Sunstein’s views on animal rights led to a conservative blogosphere feeding frenzy.
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