Congress created the Office of Advocacy (Office) of the Small Business Administration (SBA) to represent the interests of small business before regulatory agencies. It recognized that, unlike larger firms, many, if not most, small businesses can’t afford to lobby regulators and file rulemaking comments because of the expense involved. The Office was supposed to fill this gap by ensuring that agencies account for the unique concerns of small businesses when developing new regulations. Instead, as new reports from the Center for Progressive Reform and the Center for Effective Government document, the Office of Advocacy is using its resources and influence to weaken the regulatory process, usually at the behest of big business.
The Office of Advocacy has steadily expanded its role in the rulemaking process, creating numerous opportunities to oppose regulation, slow the regulatory process, and dilute the protection of people and the environment against unreasonable risks. Its activities are frequently undertaken in conjunction with corporate lobbies and trade associations that represent the interests of their large business members. Often, it is difficult to find even a sliver of sunlight between the positions taken by the Office and those taken by such prominent regulatory opponents as the big-business-focused U.S. Chamber of Commerce. It turns out that's not by accident: The Center for Effective Government’s report exposes emails between the Office and big business interests demonstrating that the Office takes its lead from big business lobbyists.
The Office of Advocacy bolsters its anti-regulatory efforts by sponsoring research projects with the obvious aim of weakening the U.S. regulatory system. Non-governmental researchers carry out these projects under contracts awarded by the Office with little in the way of oversight or peer review. At least in some cases, these "research" papers are thinly veiled political documents. The most egregious example is the 2010 study by economists Nicole Crain and Mark Crain, which purported to find that the annual cost of federal regulations in 2008 was about $1.75 trillion. As CPR and others demonstrated, the Office ignored serious methodological problems with the report, which rendered it implausible, apparently because the results fit with the Office’s anti-regulatory narrative.
Full textCPR Member Scholar David Driesen of Syracuse University has an op-ed in the January 28 Syracuse Post-Standard making the case that the President should reinvigorate his regulatory agenda, in part by diminishing the Office of Information and Regulatory Affairs' power to stifle regulations. He puts the argument in the context of the pressing need for action on climate change, writing:
Obama should put an end to obstructionist OIRA review in light of the urgency of climate disruption and the failures this review has led to. Specifically, he should issue an executive order requiring prompt regulation of major sources of greenhouse gases under the Clean Air Act, including a schedule for prompt rulemaking. This order should direct OIRA to work to speed and strengthen environmental, health and safety standards. He should also abolish OIRA's authority to review minor standards, since such reviews waste scarce government resources excessively analyzing cheap measures to protect people from important threats.
Finally, he should order OIRA to stop demanding cost-benefit analysis of proposed environmental, health and safety protections. We cannot reliably compare the value of human life or a preserved ecosystem to the costs of regulation. Key uncertainties often make quantification of the number of deaths and illnesses or the magnitude of ecological destruction addressed through environmental standards impossible....We barely made it through the first round of the 'fiscal cliff battle,' but we will still face an ongoing climate crisis unless Obama abandons business-as-usual in favor of doing everything we feasibly can do to reduce the coming damage. He can do a lot with the stroke of a pen, perhaps even enough to persuade some House Republicans to come to the table to help shape future environmental policy.
Read the full article, here.
Full textCross-posted from RegBlog.
Nobody seems to have noticed, but the Center for Progressive Reform (CPR) recently recommended abolition of review by the Office of Information and Regulatory Affairs (OIRA) based on cost-benefit analysis (CBA). Its report on recommendations for the second Obama Administration made this proposal the sixth item in a list of seven executive orders that Obama could issue with a "Stroke of the Pen" (from the report’s title). In place of CBA-based review, which has often stymied or delayed needed environmental protections, CPR recommends a complete OIRA role reversal, charging it with addressing regulatory delay and helping agencies “achieve their statutory missions.” CPR also recommends abolishing review of minor rules altogether and improving transparency.
What was first on CPR’s list of “stroke of the pen” reforms? An executive order to take action on climate mitigation – which would include a detailed list of regulatory actions with accompanying deadlines.
My hunch is that the Obama Administration is going to be more inclined to adopt recommendation number 1 than recommendation number 6, particularly given the attention to the subject in the President’s Second Inaugural Address. This does not mean that CPR erred in recommending abolishing CBA-based OIRA review. CPR is a virtual think tank of legal scholars, not a traditional environmental group, and it should put forward sound reform proposals that might be adopted, if at all, only after a very long period of debate and discussion.
Full textCPR's Rena Steinzor and Amy Sinden have an op-ed in this morning's Baltimore Sun urging President Obama to make aggressive use of Executive Orders leading to regulation action to protect health, safety and the environment. They write:
Barack Obama's ambitions are clear. He came to office in 2009 on the strength of a far-reaching, progressive agenda that included resurrecting the economy, rebuilding the American middle class, ending one war, winning another, stopping the Bush-era tax giveaways to the rich, fixing the health care system, addressing global warming, ending "Don't ask, don't tell," and more.
Four years on, despite the bitter partisan divide that defines politics in our age, he's made progress on most fronts, to his great credit. But if he is to make further advances on his agenda, odds are he'll need to do it without much help from Congress. Let's face it: If the fiscal cliff battle tells us anything, it's that the spanking congressional Republicans took from voters last month did little to diminish their appetite for confrontation and gridlock. As a result, great legislative achievements don't seem to be in the cards for either party any time soon.
So what might the president accomplish on his own? Plenty. If, that is, he's willing to use every bit of executive power he can marshal, by directing the regulatory agencies of his administration to move with dispatch to regulate and enforce in a number of vital areas.
The piece draws on their recent CPR Issue Alert, Protecting People & the Environment by the Stroke of a Presidential Pen, written with fellow Member Scholar Robert Glicksman, CPR Senior Policy Analyst Matthew Shudtz, and Policy Analysts James Goodwin and Michael Patoka. The op-ed and the Issue Alert map out a way for the President to secure a legacy on environmental, health and safety issues, and are well worth a read.
Full textCross-posted from ThinkProgress.
“Election over, administration unleashes new rules,” trumpeted an Associated Press story this week.
What are these newly unleashed rules? Perhaps the big food safety rules that have been stalled for more than a year have gone through? Rules limiting greenhouse gas emissions from new and existing power plants? Long-awaited rules to protect coal miners’ safety?
Not quite. In fact, the AP strained to come up with just tiny examples: “[T]he Environmental Protection Agency has proposed rules to update water quality guidelines for beaches and other recreational waters and deal with runoff from logging roads.”
The recreational waters standard was a welcome development, but not particularly consequential or abrupt. EPA was required by law to issue the recreational water standards by 2005; it has issued them now only after being ordered by a court to do so. And as the agency explained in its press release, “The criteria released today do not impose any new requirements; instead, they are a tool that states can choose to use in setting their own standards.”
As for the rule earlier this month on runoff from logging roads, it’s not what you might imagine: it says that EPA will not be regulating pollution from logging roads. That regulation was issued in an incredibly short period of time; it took only three months from the agency proposing a rule to issuing its final “rule.” If only the Administration were so aggressive with protective rules.
Full textAfter the last of the applause lines has been delivered, and while the crowd that gathered for his historic second inauguration is still filing out of town, President Obama will once again sit at his desk in the Oval Office and begin the tough policy work that will define his second term in office and shape the legacy he will leave behind.
Among the many challenges he'll face over the next four years will be an urgent agenda of addressing critical threats to public health, safety, and the environment that the Administration let languish during the first term. But good luck to him if he decides to attack the problems with legislation. The election made the numbers in both chambers of Congress somewhat more favorable to the President's cause. But it'd take an earth-shattering event or at least another election to get protective legislation out of the House of Representatives, which vacillates between being sullen and defiant and will undoubtedly return to its anti-regulatory drum-beating as soon as the fiscal “crisis” is over.
So what's a President to do? Use every bit of executive power he can marshal, in this case, by directing the regulatory agencies to move with dispatch to regulate and enforce in a number of vital areas. In Protecting People and the Environment by the Stroke of a Presidential Pen: Seven New Executive Orders for President Obama’s Second Term, released today, my colleagues and I at the Center for Progressive Reform explain how the President can take the first vital step by making full use of his authority to manage executive agencies—including the Environmental Protection Agency, the Food and Drug Administration and the Occupational Safety and Health Administration—by issuing a series of Executive Orders.
The Orders recommended in the CPR Issue Alert would address several pressing health, safety, and environmental challenges:
For a potentially earth-shattering move against one of the most notorious corporate environmental scofflaws in history, the Environmental Protection Agency (EPA) sure hid its light under a bushel this morning. The agency’s scant three-paragraph press release announced simply: “BP Temporarily Suspended from New Contracts with the Federal Government,” adding that “EPA is taking this action due to BP’s lack of business integrity as demonstrated by the company’s conduct with regard to the Deepwater Horizon blowout, oil spill and response.” As the headline suggests, the temporary suspension applies to new, but not existing, contracts with the government.
Don’t get me wrong, EPA’s move was in its own way a profile in courage for an agency that too often walks around with a target on its back, taking unwarranted hits from both its known foes—House Republicans—and from people who should be on its side—White House staff, and occasionally from other agencies and departments—like the Pentagon, or the Small Business Administration's Office of Advocacy. The question is whether the little release was an exercise in mere bravado or whether it will deliver real results.
As reporters hustled to interpret the cryptic release, the Interior Department confirmed that BP would be barred from winning any new federal oil leases. Unfortunately, BP just finished winning a slew of new leases in June, making it the largest leaseholder in the Gulf. The new leases are located in the same region of the Gulf as the Macondo well, the one that exploded in April 2010, killing 11 destroying the $350 million Deepwater Horizon drilling rig, fouling the Gulf of Mexico and hobbling the regional economy of the Gulf Coast. As the rig’s name suggests, oil lies deep below the surface out there, representing plenty of hazards to be navigated by a company that, according to EPA's careful review of ample evidence, lacks integrity.
Full textCPR Member Scholar Noah Sachs published an op-ed in the Richmond Times-Dispatch this morning critiquing the Independent Agency Regulatory Analysis Act. That bill would allow the White House to review rules proposed by independent federal agencies. Writes Sachs:
Imagine if important government agencies, purposely designed by Congress to be insulated from political pressure, suddenly had to bend to White House wishes.
Campaign contributors might then try to influence Nuclear Regulatory Commission decisions on safety standards for aging nuclear plants. Big Wall Street donors might have a backdoor route to kill Securities and Exchange Commission regulations on stock fraud.
…
While the new bill aims for transparency, we're likely to get a black hole of decision-making instead. Far from improving government, the bill will make important government decisions subject to endless internal review and closed-door meetings with industry lobbyists.
Sachs argues that Virginia Senator Mark Warner, who has supported independent agencies in the past (Senator Warner voted in favor of the Dodd-Frank bill, which created the Consumer Financial Protection Bureau), should not be co-sponsoring a bill that will effectively undermine them.
Full textJudging from President Obama’s first term, the job of White House “regulatory czar” could prove of out-sized importance these next four years, with the head of an office few know exists ending up with the power to trump the authority of Cabinet members throughout the government. Cass Sunstein, the former occupant of the position, was perhaps the most influential overseer of the regulatory process ever, and it's not hard to imagine that his replacement will be equally powerful. But I'd propose that the next Administrator of the Office of Information and Regulatory Affairs (OIRA) have a very different job description.
Sunstein made himself a strong ally of business, doing his best to put the President in a position where he could withstand attacks by his Republican opponent for being tuned out to the needs of the “job creators.” This strategy did not work particularly well. President Obama was subject to withering attacks from big business and its political allies, and won reelection in the end by explaining himself as a populist concerned about the middle class. For this reason, and because the recent crisis over compounding pharmacies reminds us how badly regulatory agencies need to be strengthened, I'd urge the President to appoint a czar who will work to make sure that regulation and its enforcement are as effective as they are efficient from an economic perspective. I hope, in other words, that the President listens to his own campaign rhetoric and picks someone who can lead OIRA to develop a reoriented regulatory mission, one based on a positive vision for protecting the public.
For three decades, OIRA Administrators have described their task as one of number-crunching and economics, making it sound as if they're just adding up regulations' projected costs and benefits and seeing which side of the equation wins because it is objectively bigger. But their unwritten, self-defined mission is quite different. They have seen their task as standing guard on federal agencies to make sure they don’t upset industries too much, serving as a court of last resort for big business, and sparing the President from political damages. This role has not served anyone particularly well – except for industry.
But there's no law that says this is how OIRA should function; it's a habit that has grown up over the years. President Obama's next OIRA Administrator needs to see outside that shortsighted lens. In his 2008 acceptance speech at the Democratic convention, President Obama said that government should “protect us from harm and provide every child a decent education; keep our water clean and our toys safe.” That's the mission that the next OIRA Administration needs to make his or her own.
Full textPresident 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.
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