One of the most powerful sleights of hand achieved by Republicans during the last election cycle was their renewed declaration of war on regulation. It’s no secret which of their interest groups are most passionate about this aspect of their agenda. Tuesday's LATimes previewed a plan by the Chamber of Commerce, to be announced today, to further unleash its lobbying legions against regulations as soon as the new congress is anointed. But it's unlikely the Chamber will get too specific on which popular regulation it wants to kill, just as Republicans have neglected to specify which budgets will be cut. First build to a fever pitch and then—only at the last minute, mind you—admit the substance.
No surprise there. As the Chamber and John Boehner know all too well, dead regulations, just like specific budget cuts, inevitably generate mourners. West Virginia’s Senator-elect Joe Manchin may have shot a mock-up of federal climate change legislation in a campaign ad, but ask his constituents whether the Mine Safety and Health Administration should get more authority to prosecute the people who caused the Big Branch mine disaster and you’ll get a different answer. Or consider the strident demands of businesses along the Gulf of Mexico shore that the Obama Administration lift the drilling moratorium. Then imagine how they will react when there’s another spill and federal inspectors are implicated in the negligent operation of the rig that produces it.
Even as the Chamber is working on erecting new barriers to needed federal regulation, a new academic report out today Tuesday will, I fear, suggest yet another theater of war for industry: the states. The 441-page report comes from the Institute for Policy Integrity at the New York University School of Law, the brainchild of cost-benefit analysis enthusiasts Ricky Revesz and Michael Livermore.
The report contains an exhaustive review of regulatory review policy in the 50 states (and DC and Puerto Rico), rightly noting that regulation in the states has long gotten surprisingly little attention and analysis. The states were judged on several good criteria: for example, that regulatory review should not unnecessarily delay or deter rulemaking and should promote transparency and public participation. But the report also advocated the troubling notion that economic analysis, if done right, is the key to reaching all the right policy outcomes.
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 textWhatever happens at the polls this November, President Obama will get a chance to turn the electoral tide in 2012, perhaps without the loadstone of recession around his political neck. And, while the economy and many other issues will continue to occupy the President for the best and most obvious of reasons, it’s fair for everyone in the country to expect him to multi-task. For progressives who care about the environment, I’d suggest one critical criterion for judging the Administration: Can the President and his senior appointees stop running from the bogus claims that they stand for big, bloated, ineffective government and instead explain to the American people why government makes a vital difference to our daily lives?
Just last week we got another distressing, preliminary answer to this crucial question when the Administration stiffly dismissed the preliminary findings of staff at the bipartisan National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling. The staff working papers provide discouraging insights into White House efforts to micro-manage the frantic efforts of a phalanx of agencies, while trying to get a grip on a catastrophe incubated by Bush II.
According to the staff report, it turns out that for the first several weeks, Coast Guard Admirals Thad Allen and Mary Landry systematically underestimated the amount of oil pouring from the broken well by more than 1,000 percent (5,000 as opposed to 60,000 barrels flowing each day). By taking an “overly casual approach” to these figures, the staff write, “the federal government created the impression that it was either not fully competent to handle the spill or not fully candid with the American people about the scope of the problem.”
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.
Full textSenator Mary Landrieu (D-La.) currently has a hold on Jacob Lew’s confirmation to become the next director of the Office of Management and Budget, and says she won't release it until the Obama Administration ends the moratorium on deepwater oil and gas drilling. She said that while Lew “clearly possesses the expertise necessary to serve…he lacks sufficient concern for the host of economic challenges confronting the Gulf Coast.”
Sen. Landrieu seems to be ignoring the impacts of too hastily allowing oil companies to engage in risky drilling operations – something that came sharply into focus when BP’s Deepwater Horizon oil rig exploded, killing 11 rig workers and spilling an estimated two hundred million gallons of oil into the Gulf. But the impacts of too quickly rushing back into the same inadequate regulatory oversight that contributed to this oil spill don’t seem to factor into Sen. Landrieu’s calculus. People living on the Gulf Coast are faced with the consequences of the spill’s aftermath – and effects such as stress and depression don’t easily translate into quantifiable dollars and cents.
Sen. Landrieu said Tuesday that "This moratorium is doing almost as much damage and I think more damage than the spill itself." But the predictions of widespread job losses haven't panned out.
The Obama administration wants the hold ended. After meeting with Interior Secretary Ken Salazar, Landrieu said she is still firm in her position. In addition to lifting the moratorium on deepwater drilling, Sen. Landrieu would also like to see an acceleration of permits for shallow water drilling in the Gulf.
Full textCross-posted from The Pump Handle.
Is anybody else getting tired of hearing Obama Administration officials say "sunlight is the best disinfectant?" It was uttered again on Thursday (9/23) when the President's regulatory czar, Cass Sunstein, was speaking at an event hosted by the Small Business Administration. His speech was loaded with all the transparency catch terms: "disclosure," "openness," "sunshine," "open government," "accountability," blah, blah, blah. The rhetoric was annoying to read because I'd been wrestling that week with OIRA's lack of transparency. I've been in the midst of trying to confirm whether representatives of the Chamber of Commerce, National Association of Manufacturers and other industry lobbyists met recently with the reg czar's staff about a pending OSHA rule. Setting aside that these meetings are outside the normal rulemaking procedures and undermine that process, I'm frustrated hearing a lot of talk about transparency, but not seeing it.
Someone checking the OMB/OIRA website earlier last week (screenshot, 9/20/10) would think that not a single one of this extra-ordinary meetings with OIRA staff about pending OSHA rules have taken place since the GW Bush Administration. When I learned last week from two sources that meetings about a revision to OSHA's injury log had indeed taken place, I contacted OIRA to find out why the meeting(s) were not divulged on OMB's website. (It was GW Bush's reg czar, John Graham, who began the practice in 2001 of disclosing on the OIRA website a few facts about these private meetings. His staff would promptly post the date, names and affiliations of participants, and the regulatory action of interest to them. If the outside parties provided a document, that was also posted on the OIRA site.) I heard back two days later from a helpful OMB public affairs officer.
She confirmed that representatives from the Chamber of Commerce and other business groups met with OIRA staff to discuss the pending OSHA rule on revisions to its injury log; another meeting was requested and held with individuals from the AFL-CIO. She indicated that information about such meetings are posted on the OIRA website, "though there is sometimes a brief delay." She added that the OMB/OIRA website would be updated the next day to reflect two meetings held about the pending OSHA rule.
Full textThis post looks at two recent books by CPR Member Scholars in the context of the BP disaster and other recent regulatory failures:
The People’s Agents and the Battle to Protect the American Public, by Rena Steinzor and Sidney Shapiro
Facing Catastrophe: Environmental Action for a Post-Katrina World, by Robert R. M. Verchick
Does the BP oil spill signify the need for an entirely new conception of the administrative state, one reformulated to meet the global, complex, uncertain, and potentially catastrophic nature of twenty-first century threats to social and ecological well-being? Or does it simply suggest the need to redouble our commitment to environmental, health, and safety laws that are already on the books and that would have prevented the disaster if they had been vigorously enforced?
Two valuable new books shed light on these questions. Both were written before the spill, but both will inevitably be read with that disaster in mind. The first, Robert Verchick’s Facing Catastrophe: Environmental Action for a Post-Katrina World, is uncommonly moving for a tract on environmental law. It emerges out of Verchick’s experience relocating to New Orleans not long before Hurricane Katrina struck in 2005. One might think that the author, having no prior connection to the city, would have been tempted after the storm to move on to drier pastures. Yet the devastation wrought by Katrina had precisely the opposite effect on him. He immediately sprung into action in support of his newly adopted home, providing congressional testimony on issues relating to Katrina and its aftermath, serving as a volunteer and board member for local initiatives as part of the rebuilding effort, and researching and writing Facing Catastrophe. The result is a beautifully written and deeply insightful book on the challenge of managing disaster and achieving sustainability amidst a changing world.
Full textToday Jacob Lew heads to the hill for two Senate hearings on his nomination to be the new director of the White House's Office of Management and Budget. He is expected to be confirmed.
The hearings will likely focus on budgetary issues, but no less important is another division of OMB: the Office of Information and Regulatory Affairs (OIRA), the office charged with coordinating regulatory policy. The policy context is this: from salmonella-laced eggs to the BP oil spill, we are in a year of regulatory disasters. No one agency or individual is responsible for the breakdown; the problems are pervasive and the fixes often not easy.
The OMB could be playing a positive role in supporting regulatory agencies and helping to stop the next crisis before it happens. Instead, it has too often busied itself meddling in agencies' processes, and rushing to stand up for industries with questionable claims of high regulatory compliance costs. Meanwhile, in the real world, toys are tainted with lead, the coal ash ponds are leaking chemicals into the water, and we move from one food contamination episode to the next.
Full textFive years after Hurricane Katrina, the BP oil spill offers a chance to learn a lesson that we should have learned five years ago. Certainly, the two events differ in important ways – the hurricane itself was a force of nature, and the oil well blowout although powered by nature, was clearly the result of human activity. But the hurricane was not just a natural disaster. Its impact resulted from a series of human decisions and actions that exacerbated the hurricane’s effects and impaired the response effort. The lesson we should learn from these disasters is this: numbers may not lie, but they will fool us if we let them. Numbers – like those that predict how likely a disaster is, or the cost of taking steps to prevent a disaster – can be a helpful tool as we make decisions, like what kinds of levees to build and whether to allow oil drilling in a particular area. But the problem with numbers is the very thing we love most about them. They’re so precise. They seem to give us “the answer”.
The problem is that numbers appear much more certain than they are. They give you an answer, but it’s a mistake to assume the answer is the right one. There’s truth to the saying that statistics are like prisoners of war – torture them enough and they’ll tell you anything you want. For example, there are many different ways to calculate the odds of a disaster happening. As Professor Dan Farber of Berkeley has pointed out, the odds may be that a single oil well in the Gulf of Mexico will blow out only once every 8,000 years, which sounds pretty safe. But if there are 800 manned oil wells in the Gulf, that means that we should expect one blowout every ten years – a very different picture. The odds of Katrina hitting New Orleans were very low, but the odds that a hundred year storm would hit New Orleans at some point were quite high. So the fact that a catastrophe is of low probability is not an answer to the question ofwhether we want to risk the consequences. That requires an exercise of judgment. The odds that your house will burn down are very low. But most people buy homeowners insurance because of just that risk. When we make important policy decisions, we need to act the way prudent homeowners do – consider the worst case scenarios and decide if we’re willing to risk the downside.
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