This post looks at two recent books by CPR Member Scholars in the context of the BP disaster and other recent regulatory failures:
The People’s Agents and the Battle to Protect the American Public, by Rena Steinzor and Sidney Shapiro
Facing Catastrophe: Environmental Action for a Post-Katrina World, by Robert R. M. Verchick
Does the BP oil spill signify the need for an entirely new conception of the administrative state, one reformulated to meet the global, complex, uncertain, and potentially catastrophic nature of twenty-first century threats to social and ecological well-being? Or does it simply suggest the need to redouble our commitment to environmental, health, and safety laws that are already on the books and that would have prevented the disaster if they had been vigorously enforced?
Two valuable new books shed light on these questions. Both were written before the spill, but both will inevitably be read with that disaster in mind. The first, Robert Verchick’s Facing Catastrophe: Environmental Action for a Post-Katrina World, is uncommonly moving for a tract on environmental law. It emerges out of Verchick’s experience relocating to New Orleans not long before Hurricane Katrina struck in 2005. One might think that the author, having no prior connection to the city, would have been tempted after the storm to move on to drier pastures. Yet the devastation wrought by Katrina had precisely the opposite effect on him. He immediately sprung into action in support of his newly adopted home, providing congressional testimony on issues relating to Katrina and its aftermath, serving as a volunteer and board member for local initiatives as part of the rebuilding effort, and researching and writing Facing Catastrophe. The result is a beautifully written and deeply insightful book on the challenge of managing disaster and achieving sustainability amidst a changing world.
Full textToday 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.
Full textToday CPR releases a new white paper, From Ship to Shore: Reforming the National Contingency Plan to Improve Protections for Oil Spill Cleanup Workers (press release), a look at how decisions were made about safety protections for cleanup workers in the aftermath of the BP oil spill -- and the lessons for the future.
The federal government's pre-disaster planning on worker safety issues didn't adequately consult the safety experts, and that meant the decision-making in the immediate wake of the spill couldn't be adequate. Too many cleanup workers in the Gulf were given inadequate training on the use of personal protective equipment. Employers and individual workers were left to determine on their own how to resolve the difficult question of what level of protections, such as respirators, to use.
OSHA and the National Institute for Occupational Safety and Health (NIOSH) are constrained to limited roles for planning for and implementing regulations related to oil spill disasters under the Oil Pollution Act of 1990, the statute governing oil spill response. As a result, the federal government's advance planning for disaster response doesn't adequately incorporate agency expertise best suited for planning for worker safety issues in disaster cleanup.
Full textIn Tuesday's New York Times story, “In a Feast of Data on BPA Plastic, No Final Answer,” Denise Grady characterizes the continued development of new studies about the endocrine disrupting chemical as yet another dispute between environmentalists and chemical manufacturers over a ubiquitous chemical with uncertain health effects. While her assessment of the state of the science is accurate, she expends thousands of words parsing the uncertainty and profiling the scientists who’ve made it their work to reduce the uncertainty without fully exploring the bigger picture context that would explain why this isn’t a petty dispute.
The question Grady left unanswered was, Why is there so much uncertainty about the health effects of a chemical that is produced in quantities of nearly a million tons per year? Two reasons immediately come to mind.
First, chemical manufacturers operate under a system of antiquated laws. The Toxic Substances Control Act (TSCA), allows a company to put a new chemical into commerce without having to make any explicit determination about its safety. Instead, the company simply informs EPA that it is going to manufacture the chemical, turns over whatever health and safety data it might happen to have on hand (they’re not required by law or regulation to actually do any testing), and then just waits 90 days. In the meantime, EPA may only put limits on production or use of the chemical if it is able to make a determination (in that time) that the chemical presents an unreasonable risk. Of course, without any test data that would be relevant to that determination, EPA is not likely to regulate.
Full textCPR Member Scholar Sidney Shapiro will be on the Leslie Marshall Show at 7:20ET this evening discussing regulatory failures, from the BP oil spill to the Katrina disaster of five years ago, and the lessons learned. The program is syndicated on TalkUSA and streams live.
Full textFive years after Hurricane Katrina, the BP oil spill offers a chance to learn a lesson that we should have learned five years ago. Certainly, the two events differ in important ways – the hurricane itself was a force of nature, and the oil well blowout although powered by nature, was clearly the result of human activity. But the hurricane was not just a natural disaster. Its impact resulted from a series of human decisions and actions that exacerbated the hurricane’s effects and impaired the response effort. The lesson we should learn from these disasters is this: numbers may not lie, but they will fool us if we let them. Numbers – like those that predict how likely a disaster is, or the cost of taking steps to prevent a disaster – can be a helpful tool as we make decisions, like what kinds of levees to build and whether to allow oil drilling in a particular area. But the problem with numbers is the very thing we love most about them. They’re so precise. They seem to give us “the answer”.
The problem is that numbers appear much more certain than they are. They give you an answer, but it’s a mistake to assume the answer is the right one. There’s truth to the saying that statistics are like prisoners of war – torture them enough and they’ll tell you anything you want. For example, there are many different ways to calculate the odds of a disaster happening. As Professor Dan Farber of Berkeley has pointed out, the odds may be that a single oil well in the Gulf of Mexico will blow out only once every 8,000 years, which sounds pretty safe. But if there are 800 manned oil wells in the Gulf, that means that we should expect one blowout every ten years – a very different picture. The odds of Katrina hitting New Orleans were very low, but the odds that a hundred year storm would hit New Orleans at some point were quite high. So the fact that a catastrophe is of low probability is not an answer to the question ofwhether we want to risk the consequences. That requires an exercise of judgment. The odds that your house will burn down are very low. But most people buy homeowners insurance because of just that risk. When we make important policy decisions, we need to act the way prudent homeowners do – consider the worst case scenarios and decide if we’re willing to risk the downside.
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 Legal Planet.
On Monday the White House Council on Environmental Quality issued a report on the NEPA analysis that preceded exploratory drilling at the ill-fated Macondo well in the Gulf of Mexico, together with recommendations for improving NEPA analysis in the future. According to CEQ, the Bureau of Ocean and Energy Management (successor to the disgraced Minerals Management Service) has already agreed to implement the recommendations.
The report offers a detailed look at the chaotic and uncoordinated NEPA procedures that were apparently routine at the old MMS. The major outlines of the story were already well known: MMS did a cursory, over-optimistic oil spill analysis at the 5-year program and lease sale stages, then applied a categorical exemption to applications for exploration plans. Separately from that environmental analysis, BP prepared an oil spill response plan which considered the possibility of a much larger catastrophic spill, but assured regulators that the company would be able to quickly and effectively clean up such a spill. There was never a thorough, realistic, transparent analysis of the probability and potential impacts of a blowout.
Full textOn Wednesday, EPA announced its intention to revise (pdf) the TSCA Inventory Update Rule (IUR). The TSCA Inventory is the official list of chemicals in commerce, and the IUR is the regulation that requires companies to submit production and use data to EPA to ensure the Inventory accurately represents all of the chemicals out there. This week's announcement marks the second time in ten years that EPA has decided the IUR needs improvement, based on agency staff’s efforts to regulate toxic chemicals using the data available to them.
As Dan Rosenberg points out over at Switchboard, the changes are mostly good, although EPA certainly could have gone further on a few fronts. For one, EPA has expressed some interest in changing the IUR’s requirements for reporting occupational exposures—changes that would be a huge improvement—but hasn’t yet decided exactly how to implement the changes.
Under current regulations, we don’t get much information about occupational exposures to toxic chemicals. In addition to total production volume data, companies have to describe the total number of workers likely to be exposed to a chemical (provided in a range), the maximum concentration of a chemical when it’s sent off site (or when it’s reacted on-site), and the physical form of the chemical. For chemicals produced or imported in quantities greater than 300,000 pounds per year, existing regulations mandate disclosure of some additional information about processing and use, but not enough to significantly improve our understanding of worker exposures. That’s in fact rather basic data, and leaves out the details that would allow for better risk management, including information on specific worker tasks and potential exposures. According to EPA, the information submitted under these regulations was so useless that the agency “could develop only qualitative exposure characterizations with relative ranking of low, medium, or high for characterizing potential exposures to various populations.”
Full textThe American Chemistry Council (ACC), a trade association that represents chemical industry interests and is heavily connected to the plastics industry, filed a Request for Correction Monday on the EPA's Chemical Action Plan for Bisphenol A (BPA). The request, filed under a provision of the Data Quality Act (also referred to as the Information Quality Act), is truly astonishing and bears noting. In addition to standard requests that EPA statements be toned down or removed due to conflicting studies, ACC makes several requests that EPA remove statements that are included not as “ knowledge such as facts or data,” but policy statements that reflect EPA’s intent to manage exposure to BPA.
ACC requests in several places that references to a Canadian risk assessment of BPA be deleted because the Canadian assessment was informed by the precautionary principle:
Any reliance in the Canadian assessment to support EPA’s conclusion that … action is warranted is not appropriate under the Guidelines; EPA cannot blindly rely on Canada’s screening risk assessment (particularly as Canada’s assessment incorporates the precautionary principle), but must perform its own weight-of-the-evidence assessment. (p. 9)
And ACC later objects to the use of a “conservative” model:
Full textEPA cannot rely on the highly conservative E-FAST2 modeling of BPA releases in the 2007 TRI to estimate the amount of BPA in drinking water or surface water when there exists [sic] peer-reviewed assessments of BPA in groundwater and drinking water… (p. 18, citations omitted)