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 textBefore the Fukushima Daiichi nuclear disaster, before the BP oil spill in the Gulf of Mexico, and before the Upper Big Branch mine disaster, there was the TVA coal ash spill in Kingston, Tennessee. It was at Kingston, during the early morning hours on December 22, 2008, that an earthen dam holding back a 40-acre surface impoundment burst, releasing one billion gallons of inky sludge. The Kingston coal ash spill taught the American public about the catastrophic costs that can accompany so many types of large scale energy development; its aftermath continues to teach us that instituting the necessary reforms for protecting people and the environment against similar catastrophes in the future doesn’t come easy or quick.
Today marks the one-year anniversary since the EPA released its proposed rule for controlling the disposal of coal ash, a toxic byproduct of burning coal to produce energy that contains harmful chemicals like arsenic, lead, and mercury. That announcement came fully six months after the EPA had sent an initial strong proposal (October, 2009) to the Office of Information and Regulatory Affairs; OIRA then held the initiative, beyond its authorized time limit, conducting literally several dozen meetings, mostly with industry lobbyists, on the issue. When OIRA released the edited version and the EPA announced the proposal in May of 2010, CPR president Rena Steinzor lamented that the proposal—actually, a co-proposal of two strikingly different approaches to regulating the waste—seemed calculated more to “postpone[e] any definitive action for at least six months and, far more likely, a year or more” than to quickly and effectively resolve this looming threat to public safety and the environment. The circumstances of the past year have borne out this prediction; if anything, things may be far worse than anticipated.
Full textSo far as regulatory safeguards are concerned, we've come a long way in 27 months. The Obama Administration started with federal agencies that had been devastated by eight years of an explicitly anti-regulatory president. Turning that around is not easy, and no President could do it in a day. So, as much as you see a lot of criticism in this space, you also see praise, because we've seen this Administration make important progress. From new rules on lead paint removal to construction crane safety to regulating greenhouse gases, there's a lot to applaud -- changes that will make real differences in people's lives.
But there are also a lot of rulemakings or other initiatives that fall somewhere in the "pending" category. Delay has a real cost in human health and lives. But the problem's not just that. It's that for many of these important safeguards, the administration runs the risk of not completing them at all, or not during this term. The political pressures against some of these health and safety protections in the name of maintaining industry business as usual can be huge.
A new CPR white paper today, Twelve Crucial Health, Safety, and Environmental Regulations: Will the Obama Administration Finish in Time?, identifies key rules that are critical but unfinished, and urges the administration to adopt a sense of urgency. Nine of the twelve regulations in the report are named as being in danger of not being completed during the President's first term.
Full textThis afternoon at 1:00 p.m., the House Energy and Commerce Committee’s Subcommittee on Energy and Power will check one more box in the House GOP's ongoing effort to demonstrate its appreciation to the corporate interests that helped elect them, by holding a hearing on a proposal disingenuously called the Transparency in Regulatory Analysis of Impacts on the Nation Act of 2011, or as they acronym-ize it, the TRAIN Act.
As the name does not at all suggest, it’s a bill about undercutting environmental regulations that inconvenience the energy industry. The idea is to create a sort of non-environmentally minded Star Chamber to review the full slate of Clean Air Act and coal ash regulations, for the purpose of concluding that they cost too much. That’s not quite how they phrase it, of course, but that is the purpose.
Here’s an excerpt from the committee majority staff’s description of the bill:
In the past two years, the Environmental Protection Agency (EPA) has promulgated numerous final and proposed rules that will require retrofitting of power plants, increased fees for new construction and operation of units from diverse sectors of the economy, potential construction delays, revisions to state plans to implement federal requirements, and the adoption of Best Available Control Technology measures to address greenhouse gas emissions from diverse sources.
EPA’s own analysis indicates that some of these rules will have significant costs; other actions have not yet been analyzed. There has not, however, been an analysis of the cumulative impacts of these regulations on global competitiveness, cumulative change in energy and fuel prices, employment, or reliability of the electricity supply. Nor has there been an analysis of the cumulative impacts on consumers; small businesses; regional economies; state, local and tribal governments; specific labor markets; and agriculture.
Of course, every rule that emerges from EPA undergoes a rigorous cost-benefit analysis, totting up every penny of cost to industry (calculated by industry, for the most part, so you can imagine they don’t under-project), and comparing it with the dollar value of the benefits that would result. For a number of reasons, that process is deeply flawed and slanted against protective regulations. It ignores, for example, the value of benefits that can’t be readily monetized, with the net effect that benefits are commonly understated, while the costs to industry are often exaggerated.
Full textTwo years ago this week, an earthen wall holding back a giant coal ash impoundment failed in Kingston, Tennessee, sending more than a billion gallons of coal ash slurry over nearby land and into the Emory River. The ash had chemicals including arsenic, lead, and mercury. Clean up costs could be as much as $1.2 billion.
The coal ash issue is not "new" -- toxic chemicals from unlined coal ash pits have been leaching into the ground for a long time. But the Kingston disaster, and a new administration, brought attention back to the issue and its continuing danger. One-third of some 629 dump sites that hold ash mixed with water were not designed by a professional engineer, and 96 are at least 40 feet tall and 25 years old.
Just weeks after Kingston, in January, 2009, Lisa Jackson faced her confirmation hearing for EPA Administrator. Senators asked about coal ash, and Jackson pledged she would take on the issue. On October 16 of that year, EPA sent OMB a draft of a proposed rule to regulate coal ash waste. We suspected then, and know now, that the rule was a strong one. Finally, we were on track to fix this wrong.
But the train would be derailed. On that same October day, the Office of Information and Regulatory Affairs (OIRA) at OMB hosted two representatives from the electric power industry to discuss coal ash. Things soon got busy; by a month later, OIRA was hosting multiple meetings on the coal ash rule every week. The meetings finally slowed down in March 2010. There were 47 meetings, and most, though not all, were with industry representatives opposed to EPA's proposal.
Full textA few stories from the last week that I thought deserved noting:
"In order for CBA [cost benefit analysis] to be workable, regulators need to have a relatively restricted range of possibilities." That's what OIRA Administrator Cass Sunstein wrote in a 2007 book. So how about from $82 billion to negative $251 billion, a third of a trillion dollars – is that a relatively restricted range?
Those are the estimated net benefit figures, over 50 years, in the Regulatory Impact Analysis (RIA) for EPA's "strong" coal ash regulation proposal. Do those numbers actually mean much? No. Yet there they are, trumpeted as if they have meaning. They don't.
As regular readers know, the regulation of coal ash has been quite the journey. We take the next step in the trek today, when the public comment period ends on EPA's current proposals. CPR President Rena Steinzor submitted comments on the coal ash rulemaking this morning (press release).
Let me step back a minute to explain the comments and the context. The Kingston, Tennessee, coal ash spill disaster in 2008 spurred the EPA to action; it said it would announce a specific regulatory proposal by the end of 2009. The agency submitted its proposal (which we now know was strong) to the White House's Office of Information and Regulatory Affairs (OIRA) in October. By Executive Order, OIRA has no more than 120 days to review proposed regulations, but the office went beyond its allowed limit, delaying action while it hosted some 47 meetings on the rule, mostly with industry opponents. In May of this year, the EPA was finally allowed to release a revised proposal reflecting OIRA's changes.
Full textLate last month, the White House Office of Information and Regulatory Affairs (OIRA) posted on its website a document called Agency Checklist: Regulatory Impact Analysis, which, according to the document, is intended to assist federal regulatory agencies with Executive Order 12866-required cost-benefit analyses (CBAs). Such analyses have become a standard, if fatally flawed, stage in the regulatory process. Substantively speaking, OIRA’s document contains nothing new or particularly earth-shattering—instead, it is merely a checklist of some of the requirements for CBAs established by Executive Order 12866 and Circular A-4, a document issued by OIRA in 2003 to provide agencies with comprehensive guidance on how to produce CBAs.
Significantly, though, Executive Order 12866 also establishes several responsibilities for OIRA to guide its participation in the regulatory review process. As CPR’s previous work has made abundantly clear, however, OIRA fails to live up to many of these responsibilities. So, in the spirit of OIRA’s Agency Checklist, but without endorsing the institutions of CBA or centralized regulatory review, I modestly propose the following OIRA Checklist to assist it when it carries out its responsibilities in the centralized regulatory review process:
Full textThere’s a lot of punditry left to be committed about whether and how the GOP majority in the House and the enhanced GOP minority in the Senate will work with the Obama Administration. I’m not optimistic. But even if the President and House Republicans are able to find some small patch of common ground, the hard reality that progressives need to swallow is that whatever major progressive legislation will bear Barack Obama’s signature has already become law, at least for his first term.
The same is not true, however, for what Barack Obama might accomplish simply by infusing the health and safety agencies in his Administration—from EPA to OSHA to FDA—with a sense of urgency, clearing away barriers to regulatory progress within his own White House, and insisting that the agencies enforce existing laws with newfound vigor. A string of catastrophes have shown that we need proactive government at least as much in these areas as we need cops on the beat in neighborhoods and airport security, even as Americans claim to hate government in a larger sense.
Resurrection of these agencies was a low priority for the President during his first two years. He made great appointments, but then left the agencies to cope with budget shortfalls and inadequate legal authority. As just one especially shocking example, FDA cannot order a recall of salmonella-poisoned food but instead must depend on the producer’s cooperation to get the food off the shelves. Worst of all, Cass Sunstein, his appointee to the post of “regulatory czar,” where he essentially supervises the agencies from the White House, has in many ways continued the Bush II pattern of red tape and neglect. “Yes we can” became “No we won’t” in too many instances. His small office continues to serve as a lobby for any powerful business interest—from coal companies to chemical manufacturers—intent on consigning the cops to desk duty.
Republicans followed the pattern of the Bush II Administration, screaming about overregulation and even going so far as to protest the rough treatment of British Petroleum in the Gulf. As usual, they gained traction by ranting against government writ large, not by acknowledging the need—no, the expectation and rock-solid demand—that these first-line responders keep Americans safe.
The predictable result was a mixed record--some regulators seized the opportunity and moved briskly ahead. Others bogged down.
All of that is squarely within the President’s power to fix. But will he?
Full textBack in the 1970s, when many of the great environmental, health, and safety statutes were adopted, public interest groups shared an overwhelming optimism that greater public participation held the key to maintaining—and even expanding upon—their successes. All they needed was a seat at the table where decisions are made, and their ideas would ultimately prevail. At first, they were right—public interest groups were able to advance their cause through participation in the regulatory process. But before long, regulated industry discovered that they could beat public interest groups at their own game by using their superior resources. The number of “public input” tables grew, and each increasingly became filled with more and more industry groups, while the seats for public interest groups often go empty. If the public interest groups are able to be present, they are often drowned out.
Once a dream, public participation in the regulatory process has too often become a nightmare for public interest groups. A number of different studies of the regulatory system confirm the extent to which regulated industry is dominating participation in the regulatory process, including for rules aimed at environmental, health, and safety issues. A 2006 study of 40 rules promulgated by four agencies (the Occupational Safety and Health Administration, the Employment Standards Administration, the Federal Railroad Administration, and the Federal Highway Administration) issued between 1994 and 2001 found that of the total number of comments, business interest filed 57 percent, governmental interests filed 19 percent, and non-business, nongovernmental interests submitted 22 percent. Public interest group comments constituted only six percent of the total comments submitted by non-business, nongovernmental interests. Another study, by Marissa Martino Golden, examined comments filed on eleven proposed regulations at three agencies (the Environmental Protection Agency, the National Highway Traffic Safety Administration, and the Department of Housing and Urban Development) and found that corporations, public utilities, and trade associations filed between 66.7 and 100 percent of the comments concerning these rules, and neither the EPA nor the NHTSA received any comments from public interest groups concerning five of the eight rules.
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