If cost-benefit analysis (CBA) is really part of the furniture, you wouldn’t think recently departed OIRA Administrator Cass Sunstein would need to dedicate a column to convincing us it’s so. But there it is, and though Sunstein is now but a private citizen like the rest of us, the claims merit a response.
We’re told “cost-benefit analysis has become part of the informal constitution of the U.S. regulatory state,” but that’s some odd constitution – not approved by any legislative body (and often, in fact, at odds with the dictates of the U.S. Congress), followed very selectively, and adjusted quickly at the whims of pressure from powerful industries. Billed as a non-ideological analytical tool, CBA today is in fact the opposite: questionable value judgments masked as technical calculations, all used as window-dressing to block rules that benefit the public but upset powerful industries.
Big industries and conservative think tanks spent years pushing CBA. It never made sense for the public. Cost-benefit says, for example, that a polluter can’t foul a waterway and kill a couple people along the way, unless it makes a whole lot of money doing it. It pretended that the costs and benefits are being put on the same one actor (society). In reality, one party (the polluter) had already put costs on the other (the public). Regulations seek to address that, but CBA starts with the premise that the polluters have the right to inflict the costs – a convenient starting point for a bargain.
Full textThe White House today announced the departure of Cass Sunstein, Administrator of the White House Office of Information and Regulatory Affairs. CPR President Rena Steinzor issued the following statement:
Cass Sunstein brought impressive credentials and a personal relationship with the President to his job as Administrator of the Office of Information and Regulatory Affairs. But in the final analysis, Sunstein has continued the Bush Administration’s tradition of using the office to block needed health and safety protections disliked by big business and political contributors. Worse, the narrative that Sunstein helped craft about the impact of regulations on American life — that regulatory safeguards are fundamentally suspect — was discordant with the rest of the President's agenda and the arguments he makes for his reelection.
Sunstein’s departure is an opportunity for the Administration to reset its regulatory policy and embrace public health and safety protections that have long been stalled in the White House. But the President first needs to rethink what he wants from OIRA and its administrator. The middle of a presidential campaign is a lousy time to do that. Sending a nominee into the mosh pit of a Senate confirmation hearing right now would do nothing to advance the cause of a progressive regulatory agenda. The President should take his time and find an Administrator dedicated to protecting the public. Allowing OIRA to serve on behalf of the White House as the last refuge for disgruntled polluters, Wall Street speculators, and producers of tainted food will not prevent the inevitable next wave of health and safety disasters, killing and injuring refinery workers, miners, children who labor in the fields, and the environment of the Gulf coast.
Full textTalk about trying to fix the wrong problem: Senators Mark Warner, Rob Portman, and Susan Collins have introduced a bill today that seeks to move the rulemaking process further away from agency experts and transparency and more toward hidden corners of the White House, where well-heeled industries can buy access and push political operatives to block rules.
The bill at hand is the Independent Agency Regulatory Analysis Act. In a press release and accompanying fact sheet today, the senatorial trio – one conservative Democrat, one potential Republican VP nominee, and a once-moderate Republican who has changed her stripes – boast how the bill seeks to bring the “independent agencies” under the purview of the White House. Those agencies include the Securities and Exchange Commission (SEC) and the new Consumer Financial Protection Bureau, both of which have great potential to exasperate the big bankers and security brokers who bankroll elections at both ends of Pennsylvania Avenue.
Congress created independent agencies exactly so that they’d have some room to resist presidential political meddling. Subjecting these agencies to Executive Order requirements – especially oversight by the Office of Information and Regulatory Affairs (OIRA), which is without question the most potent conduit for presidential influence over new rules – defeats the whole point of making the agencies independent at the outset. Congress wanted these agencies to be able to use their unique expertise on policy matters to develop the best solutions to the social problems that Congress created them to address.
Full textCPR Member Scholar John Knox has been appointed the U.N. Human Rights Council’s first Independent Expert on Human Rights and the Environment.
The position was created in March with a mandate to study the relationship of human rights and the environment, and prepare a series of reports to the Human Rights Council over the next three years. The mission will be to “identify, promote and exchange views on best practices relating to the use of human rights obligations and commitments to inform, support and strengthen environmental policymaking, especially in the area of environmental protection.”
Knox has published extensively on the intersection of human rights and the environment, and co-authored the CPR white paper Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties, published earlier this year. He is a professor at Wake Forest University School of Law, and has been a Member Scholar with CPR since 2010.
My warmest congratulations!
Full textPresident Obama issued the latest salvo in the Administration's efforts to placate the business community this morning, in the form of a new Executive Order called “Identifying and Reducing Regulatory Burdens.” The Order would expand and enhance the unfunded mandate that would require agencies to scour through the rule books, finding “excessive” rules that would save regulated companies big money. As I have written elsewhere in this space, the latest example of such an effort would jeopardize food safety by allowing huge poultry processors to self-inspect for salmonella, not incidentally making the lot of the workers who are already overburdened by workplace safety hazards close to intolerable.
The new order sugarcoats its regressive mandate by instructing agencies to seek “public comment” on regulatory “look-backs,” which in practice does not mean comments from mom and pop, who are unlikely to spend their spare time on regulations.gov watching out for the manufacture of dangerous consumer products. While nice in theory, this window dressing cannot obscure the fact that the process announced here is explicitly tilted in a one-way direction toward deregulation. The public comments could include calls to strengthen existing protections, and such strengthening might very well be good for the economy—as regulations often are, industry's "job-killing" rhetoric notwithstanding. Yet the order explicitly says that agencies are to prioritize “those initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens.” The White House is saying agencies should take all the public comment – but prioritize the de-regulation ideas.
The Administration has sought no new funding for agencies to re-examine existing rules. OIRA Administrator Cass Sunstein has been questioned by reporters and concerned Members of Congress on how agencies can do this work without taking away from existing work to protect the public; he has repeatedly asserted that agencies will simply get the work done. This is nonsense. A check of the latest regulatory agendas shows agencies are behind on countless important rules to protect the public’s health and safety. The EPA, for example, recently delayed, again, a rule to limit mercury and other toxic pollutants from industrial boilers.
Going on a hunt for existing regulations to weaken cannot help these busy and under-resourced agencies in their efforts to adopt important new protections for the public as they become inundated in requests from regulated industries to scale back their efforts to protect public health and safety. Having the White House pile on at this moment, when it has already effectively shut down efforts to promulgate long overdue rules to protect workers from silica, asthmatics from smog, and children from heavy agricultural machinery, is a sign that Mr. Sunstein and his staff are less interested in making sure that regulatory agencies are fulfilling their statutory obligation to protect Americans and the environment from a variety of possible harms, than they are in placating industry critics of the President.
Full textElectoral politics or public policy? Policy or politics? One ripe example of how the White House rides herd on health and safety agencies, thinking about politics, not policy to determine what they should do, is provided by the latest poster child for curbing allegedly “excessive rules”: a U.S. Department of Agriculture proposal to take federal inspectors off the lines at poultry processing plants and substitute inspections by workers who would simultaneously cope with a speed-up on the line from 90 to 175 birds/minute.
According to White House regulatory czar Cass Sunstein, regulatory decisions made in the name of the President are based on an objective consideration of the merits of health and safety rules, and he has the paperwork to prove it. Executive Order 12,866, Executive Order 13563, Circular A-4, and a wad of memoranda intone just what kinds of detailed analyses agencies are expected to perform before their regulatory proposals cross his desk. Some examples from EO 12,866:
By CPR President Rena Steinzor and Media Manager Ben Somberg
Internal EPA emails obtained by CPR through a FOIA request reveal EPA officials’ frustration regarding the White House’s efforts to triangulate House Republicans’ ferocious attacks on regulations. A White House letter last year emphasizing regulatory costs but barely describing the lives saved and injuries avoided by strong protections angered environmental and public health advocates. The newly released emails show that top EPA officials – who were not even consulted – were also not pleased.
On August 26 of last year, Speaker of the House John Boehner sent President Obama a letter requesting that the Administration provide a list of “planned new rules that would have an estimated economic impact of more than $1 billion.” The goal, of course, was to continue the GOP’s focus on the costs of regulations (the headline of Boehner’s press release: “Citing Spike in Red Tape, Speaker Boehner Seeks Info from White House on Job-Threatening Regulations”). The information Boehner was requesting was already publicly available, but that wasn’t the point; the point was to drive an anti-regulatory message. And it worked: The Washington Post ran a story under the headline “Boehner asks Obama to detail $1 billion regulations.”
And so it was disappointing when the White House took the bait – hook, line, and sinker. President Obama responded to Boehner four days later with a two-page letter that attempted to convince the Speaker (an impossible mission no matter the facts) that the Administration was very busy reducing regulatory costs. In a 19-sentence letter, the President managed only one sentence making the positive case for regulations (“And in 2009 and 2010, the benefits of such rules -- including not only monetary savings but also lives saved and illnesses prevented -- exceeded the costs by tens of billions of dollars.”) The rest of the letter was playing on Boehner’s anti-regulation turf.
Full textYesterday evening, when press coverage had ebbed for the day, the Department of Labor issued a short, four-paragraph press release announcing it was withdrawing a rule on child labor on farms. The withdrawal came after energetic attacks by the American Farm Bureau, Republicans in Congress, Sarah Palin, and—shockingly—Al Franken (D-MN).
Last year, Secretary of Labor Hilda Solis said: "Children employed in agriculture are some of the most vulnerable workers in America.” “Ensuring their welfare is a priority of the department, and this proposal is another element of our comprehensive approach."
The Administration pledged to protect young workers in dangerous jobs, and now they’ve thrown that pledge out the window.
Yesterday, the Administration said this:
“The Obama administration is firmly committed to promoting family farmers and respecting the rural way of life, especially the role that parents and other family members play in passing those traditions down through the generations. The Obama administration is also deeply committed to listening and responding to what Americans across the country have to say about proposed rules and regulations. As a result, the Department of Labor is announcing today the withdrawal of the proposed rule dealing with children under the age of 16 who work in agricultural vocations.”
Give that excuse to the families of Alex Pacas (19) and Wyatt Whitebread (14), who were sent into a grain elevator without required safety harnesses to “walk the corn,” breaking up clumps so the grain could be removed from the elevator efficiently. The boys slipped into a hollow pocket, a common hazard in the industry, which is why the harnesses are required. They were smothered to death. Or we could ask the reaction of the families of another pair of boys, Tyler Zander and Bryce Gannon, both 17, whose legs got caught in a giant auger used to pull the grain into storage silos, causing grievous injuries.
Full textWith considerable media flourish, the Department of Justice (DOJ) announced Tuesday the first and so far only criminal charges related to the BP Deepwater Horizon catastrophe that killed 11 workers, and did profound violence to the Gulf of Mexico and the local economies dependent up on it. One Kurt Mix, 50, an engineer involved in designing the failed “top kill” remedy, was indicted for obstruction of justice. More specifically, he's accused of deleting text messages from his phone that he knew were to be collected as evidence in the case..
Prosecutors made Mix do a perp walk for reporters, with the New York Times reporting that he “surrendered” in Houston, “wearing a light purple shirt and pair of khakis without a belt.” Several legal experts, including Professors Richard Lazarus (former executive director of the Oil Spill Commission) and David Uhlmann (former chief DOJ environmental crimes prosecutor) predicted that the arrest of Mix would help prosecutors build cases against those further up the food chain. With all due respect to these hopeful—really wishful—predictions, it’s way too soon for DOJ to take a victory lap.
For one thing, Attorney General Eric Holder has amassed an underwhelming track record in prosecuting perpetrators of unspeakable and fatal health, safety, and workplace crimes, including Don Blankenship, former chief executive officer of Massey Energy, whose obsession with “digging coal” without pausing to ensure safety requirements are met, led to extraordinarily hazardous working conditions at the Upper Big Branch mine, where 29 miners died in the worst disaster in 40 years; and Stewart Parnell, the chief executive of the Peanut Corporation of America, whose decision to ship peanut paste that tested positive for salmonella killed nine and sickened hundreds. Elsewhere in the regulatory arena, Holder has not yet delivered on prosecuting financial crimes documented in two dozen books, television programs, and movies.
Full textThe White House’s Cass Sunstein has found another poster child for his crusade to eliminate costly regulation under President Obama's Executive Order 13563. The order requires agencies and departments to “look back” at existing requirements in order to kill unnecessary health, safety, and environmental requirements. The U.S. Department of Agriculture (USDA), complying dutifully with the order, has dug deep into the garbage can where abandoned deregulatory proposals go to die, producing a despicable plan regarding poultry processing plants, already among the most hazardous workplaces in the nation. The proposed rollback would make corporate owners rather than federal inspectors responsible for scrutinizing slaughtered carcasses to ensure they are free of blood, guts, and (euphemistically) “fecal matter.” The new rule would save the federal government about $39 million annually—a small amount that accounts for the savings at USDA when a few hundred inspectors are offloaded. But the proposal would save the poultry industry an estimated $259 million annually.
How, you might be wondering, would a rule that requires companies to shoulder important new responsibilities save them money? Because without federal inspectors checking individual carcasses as they flash by on an already back-breaking assembly line, multi-billion dollar companies like Pilgrim’s Pride, Perdue, and Tyson’s will be able speed up those lines considerably, requiring workers to process as many as 175 birds per minute or three birds per second while still checking for fecal matter and other nasty detritus. Or, in other words, the existing workforce, with a smattering of additions (about one position for each of the 219 covered plants)—no big job development here!--will be put in the insufferable position of working that much faster, with the added responsibility of safeguarding public health.
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