Fact: It often takes agencies up to 10 years (in some cases even longer) to develop and issue critical regulations needed to protect people and the environment. These delays may save corporations money, but they impose real and preventable costs in terms of lives lost, money wasted, and ecosystems destroyed.
The reasons for this delay are not hard to divine. Before it can issue a rule, agencies must run a highly complex gauntlet of analyses and reviews that have piled up thanks to several decades’ worth of misguided regulatory legislation, executive orders, and OMB memos, letters, and circulars. The result is a mishmash of unnecessary or duplicative analyses and reviews that do little to improve the quality of agency decision-making.
For their part, agencies are hardly in the position to play these games. Over the last few decades, agencies have become overstretched as their budgets and staff have been held constant or even shrank, while the number of imported toys, new chemicals, and job hazards has increased. The result has been a series of catastrophic regulatory failures, such as the BP oil spill, salmonella outbreaks, and the Upper Big Branch Mine Disaster.
Under these circumstances, the image of agencies running amok and overregulating that is often invoked by industry and sympathetic members of Congress is absurd.
Nevertheless, this is the premise behind four proposals that will get an airing before the Senate Homeland Security and Governmental Affairs Committee, which will conduct a hearing tomorrow to consider four plans would weaken public health and safety protections. The proposals from Senators Snowe, Roberts, Vitter, and Warner (all of whom will testify) all share one thing in common: they would delay critical safeguards even more without improving the benefits of current or future regulations.
Full textAs part of its ongoing campaign to derail health, safety, and environmental regulations that it regards as inconvenient to industry, the Chamber of Commerce sent a letter earlier this month to Cass Sunstein, Administrator of the White Hosue Office of Information and Regulatory Affairs, calling on him to push the EPA to suspend an initiative to list BPA and several other substances as "Chemicals of Concern." Today three Member Scholars of the Center for Progressive Reform sent a letter to Sunstein, arguing that the Chamber had misread the law and calling on Sunstein to allow EPA to publish the proposed rule so that the public can comment on it.
EPA is considering listing BPA and four other chemicals using its authority under § 5(b)(4) of the Toxic Substances Control Act (TSCA). Each of the chemicals (or classes of chemicals)—BPA, Hexabromocyclododecane (HBCD), Nonylphenol (NP) and Nonylphenol Ethoxylates (NPEs), Phthalates, and Polybrominated Diphenyl (PBDE)—poses significant health and safety risks that the EPA has rightly determined warrant public dissemination.
In their letter today, CPR Member Scholars Noah Sachs, Rena Steinzor, and Wendy Wagner lay out how the Chamber misreads the law in its demand that the EPA promulgate specific standards prior to proposing § 5(b)(4) listings. TSCA sets a clear standard, that the EPA Administrator may list any chemical that she finds “may present an unreasonable risk.” That “may present” standard is used throughout TSCA, and no court has ever forced the agency to define the term numerically, as the Chamber demands.
The Member Scholars also write that the Chamber’s lawyers misread the law by asserting that EPA is exceeding its authority in moving to list the chemicals:
Full textEPA announced Wednesday that staff from the Office of Chemical Safety and Pollution Prevention are making good on a promise to give the public increased access to health and safety studies about the toxic chemicals that pervade our lives. I applaud EPA for their work. Until Congress reforms TSCA to free EPA’s hand in regulating toxic chemicals, we have to rely too much on an imperfect alternative system, where public interest groups use publicly available data to inform the public about risks and campaign for chemical limits at the state level (see, e.g., BPA). . Broad access to the health and safety studies that EPA has just released, along with the TSCA Inventory and Chemical Access Data Tool, ensures that public interest groups and consumer advocates will have plenty of evidence to back their campaigns.
EPA’s data release is part of an ongoing effort to reassess whether certain information, once claimed to be confidential business information by the company submitting it to the agency, still deserves the protections that go along with the CBI designation. Under various sections of TSCA, chemical companies must submit health and safety studies about their chemicals to EPA. For instance, under § 8(e), companies must submit any study "which reasonably supports the conclusion that [a] substance or mixture presents a substantial risk of injury to health or the environment." Skimming over EPA's list of recently released studies, it looks like many were 8(e) submissions.
The reason EPA is cleaning house, so to speak, is that, in many instances, companies would stamp data in the study or the company’s name or even the identity of the chemical as "CBI." So even though EPA dutifully put copies of 8(e) submissions on their website, the studies weren’t much use to outside researchers or advocates because they were missing key information. This week's release is a big step in the right direction.
Full textIn testimony before the Senate Committee on Homeland Security and Governmental Affairs in mid-April, Cass Sunstein, Administrator of the White House’s Office of Information and Regulatory Affairs (OIRA), was asked to comment on a much-disputed $1.75 trillion estimate of the annual cost of federal regulations. The number comes from a report commissioned by the Small Business Administration’s Office of Advocacy, often referred to as the Crain and Crain report, for its authors. The $1.75 trillion estimate is grossly at odds with OIRA’s own calculations, but it has been widely bandied about by anti-regulatory advocates on the Hill. Sunstein might well have been expected to knock the question out of the park back in April, but the bat never left his shoulder. “I haven’t studied that document with care,” he said (see 63:50 – 66:43 in the video archive of the hearing).
He’s apparently been studying up. Today, in testimony before the Oversight and Investigations subpanel of the House Energy and Commerce Committee, Sunstein denounced the figure as “deeply flawed,” And went on to note that the study had become “an urban legend,” hinting at how Republican Members of Congress and industry lobbyists have been citing it to support the REINS Act and other troubling anti-regulatory safeguards legislation.
Sunstein deserves praise for telling it like it is. Several months ago, CPR issued a white paper describing the blatant and numerous flaws in the SBA report. Soon after, the nonpartisan Congressional Research Service issued a report reaching similar conclusions. It’s hard to know which of those debunkings of Crain and Crain caught Sunstein’s eye, but the important news is that the Administration’s point person on regulation has had enough of the fiction-spreading business that has been at the heart of anti-regulatory forces’ rhetoric of late.
Full textThe Obama administration has been busy with its regulatory look-back, which required agencies to identify health, safety, and environmental standards to be reviewed in the coming months, with the possibility of eliminating or modifying them (in some cases, the specific proposal for modification or elimination was already made last week). In explaining why the look-back is necessary, the administration sounds too much like the Chamber of Commerce or other anti-regulatory critics and not enough like candidate Obama, who once unapologetically asserted that “government should do that which we cannot do for ourselves.” Cass Sunstein, administrator of the Office of Information and Regulatory Affairs (OIRA), should adjust the tone when he testifies before a subpanel of the House Energy and Commerce Committee tomorrow. Instead of deploying another batch of anti-regulatory rhetoric, the administration should use more language that reminds the public of the value of regulation at the same time it defends its look-back process.
The administration apparently has felt compelled to be a rhetorical opponent of the very government it heads because of what it, or its pollsters, perceive about the national mood. Yet, this point in time presents what we in the teaching profession like to call a “teachable moment.” Even if the administration thought politics dictated a look-back, it could have done it without taking up the industry rhetoric of rules that are "just plain dumb"—or acting as if the agencies could do a look-back without any effects on their resources for existing health and safety protection work.
One particular way the Obama administration has fallen short is its failure to criticize the claim by regulatory opponents that regulations have an annual cost of $1.75 trillion dollars.
Full textFor the last two decades, scientists have amassed evidence that bisphenol A (BPA) poses a threat to human health. BPA is a chemical used in the manufacture of polycarbonate plastic, can liners for food and beverages, and thermal paper used for register receipts. It is used in so many applications that the Centers for Disease Control and Prevention found traces of BPA in 93 percent of people it tested. Although scientists have targeted BPA as a public health concern, plastics industry lobbyists have attempted to thwart the efforts of federal, state, and local authorities to reduce exposure to BPA.
The industry arguments can confuse the public because the way BPA acts on the body is counter-intuitive. Contrary to the old toxicology axiom that “the dose makes the poison,” smaller amounts of BPA are linked to a host of negative health effects. BPA is an endocrine disruptor, a chemical that interferes with the body’s system of hormones. The endocrine system is very sensitive, so just a small amount of BPA at the wrong time can have major health consequences. That’s why scientists and parents alike are so concerned about BPA.
Infants and small children are the most vulnerable, and they are also the most highly exposed to BPA. The Environmental Protection Agency (EPA), Food and Drug Administration (FDA), the National Institute of Environmental Health Sciences (NIEHS) and the National Institute for Occupational Safety and Health (NIOSH) should coordinate their efforts to regulate BPA. And Congress should improve the federal approach to toxics regulation by affirmatively empowering agencies like the EPA, FDA, CPSC and OSHA to regulate endocrine-disrupting compounds.
Full textOSHA published a report (pdf) last week on its role in the federal government’s response to last year’s massive oil spill. Within days of the blowout aboard the Deepwater Horizon, OSHA officials were in Louisiana, working to ensure that the people involved in the response and cleanup had adequate protection from the myriad hazards they would face. The new report is mainly a list of accomplishments, not an introspective “lessons learned” self-evaluation that could have paved the way for policy changes that would improve the federal oil spill response system. Nevertheless, the document is worth the read because it provides a good sense of the difficulty OSHA faced in protecting a huge workforce from so many hazards, as part of an unprecedented government response.
The report covers a handful of areas where OSHA did most of its work: site visits, intervention, and technical support; chemical exposure assessment; personal protective equipment (PPE); training; guidance and publications; community outreach; injury and illness reporting; and efforts to support the Labor Department’s big-picture goals of hiring local and displaced workers.
The report’s sections on enforcement and training missed some key points that I would have liked to see the agency address. First, the report glosses over the issue of enforcement versus compliance assistance. Following the spill, OSHA chose to focus its staff’s efforts on maximizing site visits, at the expense of strong enforcement. The agency made the calculation that its limited staff in the Gulf region would be able to better protect workers by eschewing citations in favor of guidance and assistance to the employer (BP).
Full textCross-posted from Legal Planet.
I was excited to read this story in the LA Times, saying that BOEMRE and NOAA had reached an agreement that would give NOAA more say in decisions to approve offshore drilling. (Draw whatever conclusions you like about what my geeky excitement says about how boring my life must be.) This agreement is certainly needed, as the Deepwater Horizon Oil Spill Commission has noted, and as I’ve written in this paper forthcoming in Boston College’s Environmental Affairs Law Review.
As reported by the Times:
The accord will require regulators to “explain in writing any decision not to incorporate a comment by NOAA,” and allow the agency to respond to those explanations.
This is good news, but with some limitations that may not be obvious at first glance. The Memorandum of Understanding is largely aimed at increasing communication between the two agencies, and coordination of their respective work on outer continental shelf energy permitting (both for fossil fuel and renewable resources). It does provide that NOAA will have a chance to comment on BOEMRE’s draft 5-year plans for offshore oil and gas development before those plans are released to the public. It gives NOAA a chance to review exploration and development plans, the stage at which environmental review was most dramatically failing prior to the Deepwater Horizon blowout. It allows NOAA to be involved early on in the NEPA process at all stages of OCSLA decisionmaking. And it indeed does provide that
Full textBOEMRE will document and explain in writing any decision not to incorporate a comment by NOAA and NOAA will have an opportunity to respond, if possible, prior to finalization of the relevant document.
Following up on President Obama’s January Executive Order calling for agencies to conduct a regulatory “look-back,” the Administration today released a target list of health, safety, and environmental standards to be reviewed by agencies in the coming months, with an eye toward eliminating or modifying them.
The President’s January announcement was driven by politics, and from all appearances, the process of reviewing these regulations will be as well. In an op-ed in today’s Wall Street Journal, and in a speech today at the American Enterprise Institute – note the conservative venues chosen – “Regulatory Czar” Cass Sunstein, Administrator of the White House Office of Information and Regulatory Affairs, not only unveiled the target list but once again deployed the kind of anti-regulatory rhetoric one might expect from the Chamber of Commerce. Sunstein asserts that "Our goal is to change the regulatory culture of Washington by constantly asking what's working and what isn't. To achieve that goal, we need to obtain real-world evidence and data." The ugly implication, and it's incorrect, is that agencies don't currently carefully examine real-world evidence and data.
Several points stand out. First, what the White House initially billed last January as an objective examination of regulations appears to have been transformed into a blatantly one-sided effort to loosen restrictions on industry while paying little heed to the numerous threats to public health and the environment that remain unchecked. The Administration previously said that in addition to looking for regulations that are "excessively burdensome," it would also look for rules that are "insufficient" and might needed to be “expand[ed].” But today the notion of strengthening safeguards seems to have dropped out of the conversation.
Second, the Administration’s pandering to industry on this issue is in danger of doing long-term damage to the important business of protecting Americans from a variety of hazards. For one thing, the entire frame for this conversation, the one chosen by the White House in the President’s January op-ed in the Wall Street Journal, is that regulation is bad for the economy and needs to be trimmed back. In fact, regulation strengthens the economy, saves lives, keeps American healthy and safe, and in a variety of ways contributes to Americans’ quality of life. In addition, it’s worth noting that many of the rules identified today are not examples of bad rulemaking, but rather of rules that have simply been overtaken by technology—a reexamination of a rule requiring vapor recovery systems at gas stations that has become less crucial because automobiles now have similar technology on-board, for example. Such rules made sense when adopted, and should be updated as needed. But spare us the “stupid regulation” rhetoric, please.
Full textCross-posted from Triple Crisis.
Climate legislation, even in its most modest and repeatedly compromised variety, failed last year. And there won’t be a second chance with anything like the current Congress. What caused this momentous failure?
Broadly speaking, there are two rival stories. It could be due to the strength of opposing or inertial forces: well-funded lobbying by fossil fuel industries, biased coverage by increasingly right-wing media, the growth of the “Tea Party” subculture and its rejection of science, dysfunctional institutions such as the U.S. Senate with its filibuster rules, and the low priority given to climate legislation by the Obama administration.
Or it could be because environmentalists screwed up and shot themselves in the foot.
If you had to guess, which of these stories sounds to you like it would get more media attention? You’re right, that’s what everyone else thought, too. Gridlock in U.S. politics, and its effects on the fate of the earth, is such boring old news; the notion that misguided liberals have only themselves to blame sounds so clever and different.
This ecological niche has not gone unfilled. The Breakthrough Institute, whose motto could be “clever and different since 2005,” has repeatedly informed us that the death of environmentalism is the fault of environmentalists. Now “Climate Shift,” by American University political scientist Matthew Nisbet, claims that there was no media bias on climate issues in the last few years, and that advocates of climate legislation outspent their opponents, but still lost.
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