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 textThe Washington Post reports today on the White House’s latest failed effort to extract political gain from the President’s misguided “regulatory look-back,” led with disturbing enthusiasm by Cass Sunstein, administrator of the White House Office of Information and Regulatory Affairs. The story tells us a lot about the thinking of the man who controls access to the President, and also lays bare a failing of the way the media covers regulatory issues.
According to the Post, White House chief of staff William M. Daley appeared Thursday before a National Association of Manufacturers gathering hoping to “make nice with corporate America.” But instead, he endured a series of hostile questions from the audience of manufacturing executives eager for looser regulation of their industries.
Daley served up the President’s regulatory look-back as evidence of the Administration’s willingness to weaken regulation in order to please industry – and perhaps the occasional independent voter. But the titans of industry were having none of it. Quotes the Post:
“We think there’s a thin facade by the administration to say the right things, but they don’t come close to doing things,” said Barney T. Bishop III, chief executive of the business group Associated Industries of Florida. He called the efforts to streamline regulations “immaterial.” “We love the platitudes, but we want to see action,” Bishop said.
In a telling example that the Post story doesn’t bother to run down, a Massachusetts utility exec named Doug Starrett complained to Daley that the “Administration [was] blocking construction on one of his facilities to protect fish, saying government ‘throws sand into the gears of progress.’” If Daley offered any defense, or even allowed for the prospect that there might be more to the story, the Post doesn’t mention it. Instead, Daley is paraphrased as saying he “did not have many good answers, appearing to throw up his hands in frustration at what he called, ‘bureaucratic stuff that’s hard to defend.’ ‘Sometimes you can’t defend the indefensible,’ he said.”
Maybe so, but it might have been useful to gather a fact or two before pointing fingers at “bureaucrats.” Here’s a little background on Starrett’s facility, courtesy of the Worcester Business Journal.
Full textHow easy it is to make fun of those out-of-control, unelected government bureaucrats! The examples of their wild behavior are just so plentiful. Here's Tim Pawlenty in his big economic speech this morning (prepared remarks, video):
Conservatives have long made the federal bureaucracy the butt of jokes. And considering some of the bureaucrats in Washington, and what they're actually in charge of doing -- like the strength of our showerheads, the vigor of our toilet flushes, or the glow of our reading lamp -- you know, it’s hard not to laugh, or cry, about such things.
Actually, no.
The showerhead and toilet standards were set by Congress in the Energy Policy Act of 1992. From the law:
The maximum water use allowed for any showerhead manufactured after January 1, 1994, is 2.5 gallons per minute when measured at a flowing water pressure of 80 pounds per square inch.
The law also set a 1.6 gallon/flush standard on most toilets. American life went on.
The law addressed manufacturers, not homeowners, so homeowners aren’t required to change their existing showerhead. It wasn’t a particularly controversial law at the time, passing the House 381-37 and the Senate 93-3. It was signed into law by the not-so-liberal George H.W. Bush. Showerheads were back in the news last year when the Department of Energy said the law meant manufacturers couldn’t attach multiple nozzles onto one fitting and thus double the flow of water. The controversy was irrelevant to the vast majority of Americans, who use showers with a single head.
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 textFollowing 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 textOffice of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein heads to the American Enterprise Institute Thursday morning to speak about federal agencies' plans to "look back" at and review existing regulations. Meanwhile, agencies statutorily obligated to protect public health and safety, such as EPA and OSHA, are diverting resources from pressing work so that they can structure and soon carry out a hunt for a supposed treasure of frivolous old regulations that need to be revised or eliminated. Strikingly, even industry itself has struggled to come up with enthusiasm for the effort -- or even a few specific examples of old rules it believes are unduly burdensome. It adds up to a not pretty picture.
President Obama called for the regulatory “look-backs” in his January 18 Executive Order on regulatory policy; the Order called on each agency to develop a "preliminary plan" within 120 days for how it would conduct its look-back. That time was up last Wednesday.
These existing regulations that are subject to look-back, of course, are not rules that rogue agency staffers made up out of thin air two weeks ago while doing all-nighters in the basement at EPA headquarters in the Ariel Rios building. Instead, in EPA’s case, the rules industry finds so offensive were mandated with great specificity in the 1990 Clean Air Act Amendments. Industry and its allies tried to defeat the legislation then and failed. Then they tried to persuade EPA to adopt feeble regulations and failed. Then they challenged the regulations in court and failed. Now industry seeks its umpteenth bite of the apple—in fact, not much of even the apple core is left.
Full textEPA announced Wednesday that it is delaying the reporting period for its Inventory Update Reporting requirement. It's not good news.
EPA had announced its intention to revise (pdf) the TSCA Inventory Update Rule (IUR) back in August of last year. 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. Determining the risks posed by chemicals in the environment is a matter of combining hazard information with exposure data. The TSCA Inventory, along the data in EPA’s Toxic Release Inventory, provide answers to the “exposure” half of that equation.
EPA's proposal was a step forward, requiring more information reporting from chemical manufacturers, more frequent updates, less information hidden from the public by confidentiality, and other improvements.
EPA sent the rule to OMB's Office of Information and Regulatory Affairs back on January 20th. OIRA then hosted at least six meetings on the issue -- five with industry representatives and just one with environmental and public health groups. The chemical industry has been bombarding the administration and congress with fallacious arguments against the updated IUR (see this useful post by Richard Denison and Allison Tracy for a rundown and explanation. In one example, industry claims small businesses will be unduly burdened, when they are in fact largely exempted).
Full textThis great country of ours is quite fond of its enduring myths: poor kids are able to become rich kids by working hard, the family farm feeds us a nutritious bounty, and small business is the engine that makes our economy sing. When most of us hear that musical phrase—smaaaall business—we think of the local florist, ice cream shop, or shoemaker. How startling, then, to discover that according to the Small Business Administration (SBA) a petroleum refinery employing 1,500 workers is also “small,” although of course not nearly so beautiful.
A couple of weeks ago in this space, I explained the plan Sens. Olympia Snowe (R-ME) and Tom Coburn (R-OK) had concocted to hold existing health and safety rules hostage by allowing the chief counsel of the SBA Office of Advocacy, an independent bureau within the SBA best known for its militant attacks on public health regulations, to unilaterally nullify regulations if it concludes that the sponsoring agencies fail to thoroughly review them to ensure that they did not overly inconvenience that refinery, or the 500-person tannery, 1,000-worker chemical plant, or 750-person explosive manufacturer that are also defined as “small businesses” under SBA rules.
My blog post led to some not altogether flattering media attention in Senator Snowe’s home-state newspapers, prompting her to write a long op-ed defending her proposal to vest all that authority in the SBA, after which she apparently abandoned that particular mechanism for gumming up the regulatory works in favor of a new one. And now she’s trying to shoehorn her controversial amendment onto an otherwise bipartisan bill that provides subsidies to small businesses, a move that was called out on the Senate floor by Majority Leader Harry Reid.
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