President Obama’s reelection holds the possibility of great progress for public health, safety, and the environment — if, and only if, he recognizes the importance of these issues and stops trying to placate his most implacable opponents.
The weeks leading up to the election brought powerful reminders of two of the challenges at hand: rising sea levels and more severe storms that scientists say we should expect as a result of unchecked climate change, and a meningitis outbreak that sickened hundreds, thanks to an obscure compounding pharmacy that escaped regulators’ reach. And let’s not forget that we are recovering from an economic downturn in which under-regulation of giant financial institutions played no small part. This is the context, the starting point.
Taking a progressive stance on health, safety, and environmental threats has never been easy politically because the industries most affected by these protections have powerful allies in Washington, a small army of lobbyists, and plenty of money to contribute to politicians who support their opposition to regulation. So if the President chooses to take the lead on air and water pollution, food and drug safety, and dangerous conditions in the workplace, for example, he will face extraordinary pressure to do the wrong thing. And, sadly, he did not cover himself with glory during his first term in this area. Particularly as the campaign drew closer, the President tried to burnish his business-friendly credentials at the expense of needed protections. Now he has four more years to leave a legacy of leadership on these vital, life-and-death issues.
The stark choices are perhaps best exemplified by climate change. One path is tragically easy, the other extremely hard. The easy path is to only poke at the edges of greenhouse gas emissions reduction. The hard path is to take aggressive action, using the full powers of the Clean Air Act, to put the country on the path to dramatically reduced greenhouse gas emissions. In not so many years, this choice will be looked back on as one of the key measures of the President’s legacy. Without any question, history will condemn inaction in no uncertain terms. But a strong legacy will not depend just on climate. If the President does not act to make government protections stronger and more effective, we will face more tragedies, from fatal foodborne illness to refinery explosions to oil spills that kill people and cost billions.
Full textA draft of the Republican party platform, posted by Politico on Friday afternoon, reveals that the party has incorporated some of the more absurd claims and proposals on regulations pushed by House Republicans and some more radical trade organizations.
The draft claims regulations cost $1.75 trillion each year – that’s from a discredited study sponsored by the Small Business Administration’s Office of Advocacy. It turned out that 70 percent of that figure came from a regression analysis based on opinion polling on perceived regulatory climate in different countries (and much of the rest of the number came from cherry-picking the highest available estimates). The SBA study was debunked by a CPR white paper, the non-partisan Congressional Research Service, and the Economic Policy Institute (twice).
The draft platform says: “Constructive regulation should be a helpful guide, not a punitive threat.” In other words, we suggest that you don’t poison your neighbors, but won’t do anything if you do – not quite a get-tough-on-crime message. And in reality, the punitive threats of even our existing rules are often simply too meager: if an employee’s death is caused by the willful violation of an OSHA requirement, for example, the maximum civil fine for the employer is $70,000. We have learned the hard way that that is not enough to deter many employers from breaking the rules.
The regulations section ends with this: “We call for a moratorium on the development of any new major and costly regulations until a Republican Administration reviews existing rules to ensure that they have a sound basis in science and will be cost-effective.” Now, telling the Obama administration – particularly if the President is reelected – that it can’t regulate until a Republican president approves – that’s quite a platform plank!
Full textThe Occupational Safety and Health Act of 1970 is one of the surviving monuments of the era of progressive social legislation (extending from the mid-1960s through the mid-1970s) during which Congress enacted the nation’s foundational health, safety and environmental laws. That statute empowered the Occupational Safety and Health Administration (OSHA) to write safety and health standards designed “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” A separate “general duty clause” required every employer to provide a workplace that was “free from recognized hazards” that were likely to cause “death or serious physical harm.”
During the ensuing four decades, OSHA’s efforts to implement that statute have brought about substantial reductions in workplace injuries and illnesses, but far too many workers are still hurt or killed.
According to the Bureau of Labor Statistics, U.S. private sector employers in 2010 reported nearly 2.9 million injuries and around 200,000 workplace illnesses. The actual numbers are likely much higher because some employers underreport workplace injuries, and doctors frequently fail to inquire into the likelihood that particular diseases, like cancer, have a workplace origin. A total of 4,690 workers died on the job, which represents a fatality rate of about 3.6 deaths per 100,000 full-time employees. These rates declined slightly during the recession of 2009, but were on their way back up in 2010
The sad fact of occupational life in the United States is that OSHA has not lived up to its potential, primarily because for the 30 of the past 40 years, OSHA has been the subject of unrelenting attacks by the business community. These attacks have rendered OSHA largely incapable of promulgating new occupational safety and health standards and only barely able to enforce existing standards the general duty clause. In 2010, the Center for Progressive Reform published a report detailing serious regulatory dysfunction in OSHA due primarily to a lack of resources, a weakened regulatory process, intrusive review by the White House, and an outmoded statute.
Today we publish The Next OSHA: Progressive Reforms to Empower Workers, offering a wide variety of suggestions for how Congress, OSHA, and workers themselves can make the nation’s workplaces safer and healthier. I co-authored the report with fellow CPR Member Scholars Martha McCluskey, Sidney Shapiro and Rena Steinzor, and CPR Senior Policy Analyst Matthew Shudtz.
Full textIn a case that could have far reaching implications for agencies subject to the Regulatory Flexibility Act, the D.C. Circuit Court last month held that an EPA decision not to convene a small business advocacy review panel before issuing a rule was not judicially reviewable. The decision by Judge Merrick Garland, for a unanimous 3-judge panel, was in National Association of Home Builders (NAHB) v. EPA.
NAHB challenged the EPA’s change of course on an “opt-out” provision of a rule established under the Residential Lead-Based Paint Hazard Reduction Act. With the goal of protecting thousands of children from lead poisoning associated with older homes, the rule mandated that renovators of housing built before 1978 take certain steps to mitigate the dangers from lead paint. The opt-out provision would allow an owner-occupant of housing without children under the age of six or pregnant women to waive protections afforded by the rule. Two years after first creating the opt-out provision, the EPA, hearing criticism from environmental health advocates, reconsidered the harm the opt-out could cause to children and pregnant women, and chose to rescind it. The agency did so relying solely on the evidence that was available when the opt-out provision was enacted, but now applying that evidence to better fulfill the governing statute’s directives. As Judge Garland put it, the EPA simply “change[d] its mind.”
Among other things, the NAHB argued that the EPA’s change of course violated the Regulatory Flexibility Act (RFA) because the agency did not convene a small business advocacy review panel. The RFA § 609(b) stipulates that an agency must convene such a panel in connection with the initial flexibility analysis that is mandated each time a new rule is promulgated.
Full textLast week, The Washington Post ran a story about regulation, headlined, "Regulators surge in numbers while overseers shrink." The story came from Bloomberg and was written by reporter Andrew Zajac. The headline captures the thrust of the piece. Zajac writes:
As the U.S. government’s regulatory bureaucracy has ballooned, one agency has been left behind: the office that oversees the regulators. The number of people working in federal agencies with regulatory authority has doubled to about 292,000 under both Republican and Democratic administrations during the past 30 years.
Yesterday, the Columbia Journalism Review dismantled the story's premise in the kind of takedown that ought to prompt the Post not just to run a correction, but to reconsider the way it reviews future Bloomberg stories on the subject before it prints them.
The takedown comes from Ryan Chittum, writing for CJR's "The Audit on the Business Press." Its headline also tells the tale: "Inflating the regulatory state: TSA and border security account for almost half of the increase in the regulatory staff since 1980."
Chittum writes:
Full textThe regulatory bureaucracy has ballooned? That doesn’t sound right. The federal workforce, after all, is down over the last 40-plus years, and places like OSHA are shadows of their former selves.
Electoral 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 textThe Government Accountability Office (GAO) released a report today detailing the challenges that the Occupational Safety and Health Administration (OSHA) faces in writing regulations to protect America’s workers from unsafe and unhealthful workplaces. The report was released at a hearing of the Senate Health, Education, Labor and Pensions Committee, chaired by Senator Tom Harkin (D-Iowa), on “Delays in OSHA’s Standard-Setting Process and the Impact on Worker Safety.” Both the GAO report and testimony presented at the hearing tell a depressing tale of an agency that, after 30 years of constant attacks from the business community, conservative think tanks, and reactionary members of Congress, has very nearly folded its rulemaking tent.
The GAO found that between 1981 and 2010, the time that it took for the agency to develop and promulgate occupational safety and health standards ranged from 15 months (for an easily promulgated safety standard) to 19 years, and averaged more than 7 years.
How have we come to this pass?
OSHA got off to a very good start. During its first ten years of existence, the agency promulgated 21 safety standards and 13 important health standards (one of which addressed 14 different carcinogens), all of which continue to afford substantial protection to workers. By the late 1970s, however, the Chamber of Commerce, the National Association of Manufacturers, and the National Federation of Independent Businesses had made OSHA the poster child for their demands for “regulatory reform.”
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.
Full textThe toll: An estimated 6,500 to 17,967 premature deaths, 9,867 non-fatal heart attacks, 3,947 cases of chronic bronchitis, and more than 2.3 million lost work and school days. That's just a partial tally of the costs Americans will bear because of unjustified delays in two critical health and safety regulations. More broadly, the Administration’s Fall 2011 Regulatory Agenda—released late, at the end of January of 2012—shows how many of the most important rules currently in the regulatory pipeline are being similarly delayed, leaving people and the environment inadequately protected against a number of unreasonable risks, possibly for years to come.
Working from the latest regulatory agenda, a new CPR Issue Alert assesses the Obama Administration’s progress in completing 12 key regulatory actions identified in a CPR white paper issued last April. A group of CPR Member Scholars and CPR Policy Analysts warned in that paper that the Administration’s failure to bring a sense of urgency to the job of completing the rules had opened the door to the very real prospect that nine of the twelve might get caught up in the backwash of the 2012 presidential campaign, and indeed might never be completed by the current Administration.
That bleak prediction is coming true before our eyes. Progress on the great majority of these regulatory actions has been delayed further over the last 10 months, and it is now likely most of the rules will not go into effect during the current presidential term.
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