The 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.
Full textCongress usually enacts new public protections following a major crisis or series of crises that focus attention on the failure of existing laws to protect the public or the environment from abuses by companies pursuing economic gain.
Most of the protective regulatory programs of the Progressive Era, the New Deal, and the Public Interest Era (the period of active government extending roughly from the mid-1960s through the mid-1970s) were established after widely publicized tragedies or abuses stirred public opinion to levels sufficient to overcome the inertial forces that otherwise overwhelm Congress and the regulatory agencies.
Federal regulation of mine safety and health is an excellent example of this phenomenon.
The Federal Coal Mine Health and Safety Act of 1969 was enacted in direct response to the November 20, 1968 explosion at the Consolidation Coal Company’s Console Number 9 mine in Farmington, West Virginia that killed 75 miners and 3 federal inspectors. That disaster also inspired Congress to enact the Occupational Safety and Health Act of 1970.
Congress enacted the Federal Mine Safety and Health Act of 1977 in response to explosions on March 11 and 13, 1976 at the Scotia Coal Company’s Scotia mine in Ovenfork, Kentucky. The initial explosion killed 15 miners, and a second explosion two days later took the lives of three federal inspectors and eight members of two rescue teams.
An explosion at International Coal Company’s Sago mine in Buckhannon, West Virginia on the morning of January 2, 2006 killed 13 miners and motivated Congress to enact the Mine Improvement and New Emergency Response (MINER) Act of 2006.
Full textLast Friday, the FDA denied the Natural Resources Defense Council’s (NRDC) citizen petition requesting that the agency ban Bisphenol A (BPA) as an approved food additive and food contact substance. The agency took nearly three years to issue this decision, and did so only under a court’s order. The FDA’s denial of the petition was disappointing, because the existing science on BPA is strong enough to warrant restrictions on its use. The announcement was an unsurprising continuation of the federal government’s “wait and see” approach to BPA regulation.
FDA spokesman Douglas Karas said that “this announcement is not a final safety determination and the FDA continues to support research examining the safety of BPA.” There is no question that continued risk assessment and scientific study of BPA should be part of the FDA’s action plan for addressing the health and safety concerns that recent scientific studies on BPA have raised. Earlier this year, CPR released a white paper, Protecting the Public from BPA: An Action Plan for Federal Agencies, providing a list of short-term and long-term actions that federal agencies could take to address some of these mounting concerns about BPA. At the top of our list for FDA was a continued and aggressive pursuit of the Agency’s collaborative research projects with the National Center for Toxicological Research and the National Toxicology Program.
In the meantime, however, I would remind FDA that a large body of scientific evidence already exists (and continues to collect) that supports increased restrictions on BPA’s use in food contact materials. FDA itself has taken note of these concerns in its previous statements on BPA. While FDA may see an all-out ban of this endocrine-disrupting chemical as too extreme or time-consuming, and continued scientific study is indeed imperative, there are a number of safeguards that would provide the public with some protections in the interim – much better than simply a “wait and see” approach.
Full textOn Tuesday, the House Judiciary committee is marking up the Regulatory Freeze for Jobs Act (H.R. 4078), which would block virtually any “significant regulatory action”—basically, any step toward promulgating any regulation that has a large economic impact or is otherwise controversial— as long as unemployment is over 6 percent. Rather than support initiatives that actually help the unemployed, a band of House Republicans prefer another cheap political trick here. The reality is that a moratorium would leave millions of Americans more vulnerable to health, safety, environmental, and economic risks, without improving the economy at all. In fact, the bill has the potential to shrink economic activity, not grow it.
To begin with, all of the economic studies agree: regulation does not cause a net loss in jobs. As other CPR Member Scholars and I have discussed (see here, here, here, here and here, for example), the reason is simple. Firms subject to regulation spend money on compliance, which creates additional jobs. The number of those jobs offsets any employment lost in the industry being regulated. There is even evidence that regulation can lead to a net increase in jobs. To the extent this is true, the Republicans’ effort to bolster employment with a regulatory moratorium will actually decrease it – it might be an actual “job killer.” Congressional Budget Office (CBO) Director Douglas Elmendorf raised the concern of reduced private sector investment caused by delaying or weakening environmental rules when he testified (p.49) before the Senate Budget Committee last November.
Full textThe BP Oil Spill case settled! Well, part of it. The smaller part. But, still, we must count this a victory for U.S. District Judge Carl Barbier, whose reported 72 million pages of assigned reading will inevitably be shaved down. (Does this man have an iPad?)
On Friday evening the court announced that BP had reached a settlement with the steering committee that represents thousands of private plaintiffs in the case. Judge Barbier postponed the trial indefinitely while the remaining parties, including the federal government, regroup. According to news reports, the settlement would cover claims for economic loss and medical harm. BP estimated that the settlement, which has no firm cap, might total $7.8 billion; the actual number would depend on how many plaintiffs accept the deal and how much they’re ultimately paid. Plaintiffs displeased with the offer could opt out and stay in the litigation. And all private claims against Transocean and other defendant companies remain.
On balance, the settlement appears to be a good thing. But this plate is just the appetizer. The main course—a pepper pot of federal civil claims and criminal charges—has yet to come. And that’s a dish that could really bust a gut.
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Well, another magnificent Mardi Gras has ended, and at this point, I’d normally be slouched on the sofa sipping a tomato juice (neat) and sorting beads. But not this year. That’s because next week, squadrons of lawyers, journalists, petroleum engineers, and fisher folk are scheduled to descend on New Orleans, squeeze into a federal courtroom, and begin on Monday what the media have modestly called, “The Trial of the Century,” otherwise known as the BP Oil Spill litigation.
Whatever the rest of the century holds, it seems fair to say that this legal dispute, if it does not settle, will be the most complicated environmental trial anyone has ever seen. With a thousand plaintiffs, a galaxy of witnesses, and 20,000 exhibits, this spectacular has more moving parts than a Madonna half-time show. As the trial unfolds, I’ll provide you with some occasional shrimp-boots-on-the-ground legal blogging.
First, though, I’ll start with the background of the case (please see also two CPR white papers: Regulatory Blowout: How Regulatory Failures Made the BP Disaster Possible, and How the System Can Be Fixed to Avoid a Recurrence (Oct 2010) and The BP Catastrophe: When Hobbled Law and Hollow Regulation Leave Americans Unprotected (Jan 2011)). Here are some answers to common questions.
Q: Can you remind me what the BP Oil Spill was all about? I remember “Top Kill” and “I’d like my life back,” but the rest of it is a little hazy.
Full textThe Economist’s February 18 edition offers a cover package of five articles on “Over-regulated America” (1, 2, 3, 4, 5). Our British friends want you to know there’s a problem here in the States that needs fixing:
A study for the Small Business Administration, a government body, found that regulations in general add $10,585 in costs per employee. It’s a wonder the jobless rate isn’t even higher than it is.
You can almost feel The Economist’s pain: the jobless rate should be a lot higher than it is, if the premise about the costs of regulations is correct. Surely if the regulatory burden were actually 12 percent of GDP – that’s what the SBA numbers say, if you draw them out – things would be far worse than they are. Ideologically unable to consider the obvious alternative – that regulations don’t add $10,585 in costs per employee, The Economist, just, well, “wonders” aloud.
Here’s what The Economist would have found if they’d dug just a little bit: Fully 70 percent of the SBA estimate was actually based on a regression analysis using opinion polling data on perceived regulatory climate across countries (in a strange twist, a separate article in the same issue actually questions the study, briefly). Whole reports have been written on why that number is bogus.
Our economy is still recovering from a tremendous collapse largely caused by under-regulation of financial institutions. But in its group of articles, The Economist wants us to think the opposite: “The home of laissez-faire is being suffocated by excessive and badly written regulation.” That premise, in turn, leads the magazine to – you guessed it – a series of warmed-over right-wing policy ideas aimed at gutting regulations. Let’s take a closer look.
Full textToday CPR releases Protecting the Public from BPA: An Action Plan for Federal Agencies (press release), outlining steps the FDA, EPA, and OSHA can take to use existing authorities to warn the public about the dangers of the chemical, and prepare longer-term regulatory controls. The paper was written by CPR Member Scholars Tom McGarity, Noah Sachs, and Rena Steinzor, and Senior Policy Analyst Matthew Shudtz and myself.
Bisphenol A (BPA) makes me want to cry. Not in the sad or mournful way, but in the “I want to kick and scream on the floor and throw a tantrum like my toddler” kind of way. I didn’t always feel this way. These feelings concerning BPA (an endocrine-disrupting chemical added to plastics to increase clarity and durability, and used in myriad other sources such as can linings, kitchen appliances, and water bottles) began to arise when I started working with CPR Member Scholars and fellow staff on BPA policy. The more I learned about BPA, the more I felt like its presence in my life was like mosquitoes in D.C.—a summer BBQ killjoy.
Then I became a parent, and the frustration and concern escalated, because the more I found out about BPA, the more I recognized that the industries using it did not truly understand how it affected my health, but more importantly, the health of my child. Even worse, the new approaches to testing its “safety” and potential adverse health effects were churning out new evidence of its dangers. Evidence that did not fit the traditional “risk assessment” model used by health and safety regulators and thus spurred no change in protective standards.
Full textA draft policy released for comment last week by the U.S. Fish and Wildlife Service and National Marine Fisheries Service took on the challenging question of defining the circumstances under which only a portion of an ailing species may be eligible for federal protection under the Endangered Species Act. Unfortunately, the Services’ proposal continued the agencies’ trend toward restrictively interpreting the ESA’s listing provisions. If finalized, the new policy will likely result in fewer protections for formerly widespread species, such as gray wolves, that now inhabit only a fraction of their former range.
The ESA defines “endangered species” as species in danger of extinction “throughout all or a significant portion of its range.” Litigation over the past decade raised a host of questions as to exactly what Congress meant by the latter phrase: Can the Services list a species as threatened or endangered in only a “significant portion” of its range even if the species is doing relatively well in other portions of its range? Does the “range” of a species mean its historic range or its current range? And just what is a “significant portion” of a species’ range?
Though such questions may seem rather arcane, they go to the heart of significant listing controversies under the ESA. Perhaps the highest profile dispute involves gray wolves, which last year became the first species delisted by Congressional fiat (though only in the Northern Rocky Mountains) in response to court decisions overturning FWS attempts to delist that population of the species. Wolves once roamed throughout much of North America, but were reduced to scattered remnant populations due to habitat loss and a persistent drive to exterminate them. They were listed as endangered in 1967 under a predecessor to the ESA. After reintroduction efforts in the 1990s established wolf populations in the Yellowstone ecosystem and central Idaho, FWS attempted to remove the Northern Rockies wolf population from the endangered roll even though the three populations in existence (including the northern Rockies in and around Glacier National Park in Montana) inhabited only a small fraction of the area over which wolves once roamed. But conservation advocates pointed out that wolves remained absent in a significant portion of their historic range, which they asserted meant that the species still fit into the ESA’s definition of endangered.
Full textThe “Regulatory Flexibility Improvements Act” (RFIA) and the “Regulatory Accountability Act” (RAA) are headed for votes on the House floor shortly (today and/or tomorrow). The “Gum Up Public Health and Safety Protections Act” apparently wasn’t going to sell as well.
A quick recap of the Regulatory Accountability Act, via CPR Member Scholar Sidney Shapiro’s Congressional testimony on the bill in October:
For a point-by-point examination of how the RAA would leave Americans and the environment less protected, I also recommend the Coalition for Sensible Safeguards’ exhaustive report on the bill.
The RFIA would, as the White House put it, “impose unneeded and costly analytical and procedural requirements on agencies that would prevent them from performing their statutory responsibilities. It would also create needless regulatory and legal uncertainty and increase costs for businesses and further impede the implementation of commonsense protections for the American public.” (The White House issued a veto threat on the RAA, as well).
You can spin it all you want, but in the end these bills seek to block public health and safety protections.
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