The end of the school year always leaves me wishing that I could have lectured more clearly or somehow covered more in my classes on environmental law and policy. There was really just too much to discuss. How does one do justice to all those doubtful arguments in support of the Keystone XL pipeline? It’s a job creator! A gasoline price cap! A floor wax! Or the continuing saga of how the Obama administration should reorganize the offshore drilling responsibilities assigned to the MMS, I mean BOEMRE, I mean BOEM/BSEE. And there is never enough time to test it all.
This year I’ve assembled a few questions that have been on my mind this semester but that didn’t make it onto the exam. (Answers are posted at the bottom of this page). By the way, if you’re a regular reader of CPRBlog, this should be a snap: All of the answers can be found in CPRBlog entries from the last five months.
So find a quiet spot, sharpen that No. 2 pencil, and test your knowledge.
1. Last year, when the EPA began limiting emissions of CO2 from coal-burning power plants and other sources, the energy industry blew a fuse. Affected companies publicly argued that greenhouse gas regulation had gone too far. But last February during oral argument before the U.S. Court of Appeals, lawyers for some of those same companies argued that the agency’s rule was invalid because it did not go far enough. According to them, what was wrong with the rule?
Full textPresident Obama issued the latest salvo in the Administration's efforts to placate the business community this morning, in the form of a new Executive Order called “Identifying and Reducing Regulatory Burdens.” The Order would expand and enhance the unfunded mandate that would require agencies to scour through the rule books, finding “excessive” rules that would save regulated companies big money. As I have written elsewhere in this space, the latest example of such an effort would jeopardize food safety by allowing huge poultry processors to self-inspect for salmonella, not incidentally making the lot of the workers who are already overburdened by workplace safety hazards close to intolerable.
The new order sugarcoats its regressive mandate by instructing agencies to seek “public comment” on regulatory “look-backs,” which in practice does not mean comments from mom and pop, who are unlikely to spend their spare time on regulations.gov watching out for the manufacture of dangerous consumer products. While nice in theory, this window dressing cannot obscure the fact that the process announced here is explicitly tilted in a one-way direction toward deregulation. The public comments could include calls to strengthen existing protections, and such strengthening might very well be good for the economy—as regulations often are, industry's "job-killing" rhetoric notwithstanding. Yet the order explicitly says that agencies are to prioritize “those initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens.” The White House is saying agencies should take all the public comment – but prioritize the de-regulation ideas.
The Administration has sought no new funding for agencies to re-examine existing rules. OIRA Administrator Cass Sunstein has been questioned by reporters and concerned Members of Congress on how agencies can do this work without taking away from existing work to protect the public; he has repeatedly asserted that agencies will simply get the work done. This is nonsense. A check of the latest regulatory agendas shows agencies are behind on countless important rules to protect the public’s health and safety. The EPA, for example, recently delayed, again, a rule to limit mercury and other toxic pollutants from industrial boilers.
Going on a hunt for existing regulations to weaken cannot help these busy and under-resourced agencies in their efforts to adopt important new protections for the public as they become inundated in requests from regulated industries to scale back their efforts to protect public health and safety. Having the White House pile on at this moment, when it has already effectively shut down efforts to promulgate long overdue rules to protect workers from silica, asthmatics from smog, and children from heavy agricultural machinery, is a sign that Mr. Sunstein and his staff are less interested in making sure that regulatory agencies are fulfilling their statutory obligation to protect Americans and the environment from a variety of possible harms, than they are in placating industry critics of the President.
Full textBy 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 textOn one level, President Obama’s Executive Order issued Tuesday, “Promoting International Regulatory Cooperation,” seems benign enough. After all, who would be against international cooperation and a desire to “reduce, eliminate or prevent unnecessary differences in regulatory requirements”? Moreover, the Order on its face does little more than set out priorities and procedures for enhancing international regulatory cooperation.
Unfortunately, this Order is a one-way regulatory ratchet that leads only to deregulatory changes in the United States that at best will provide no new protection to U.S. citizens or the environment. The Order is motivated solely to eliminate “unnecessary” differences in regulatory requirements that “might impair the ability of American businesses to export and compete internationally.”
The priority for regulators is clear. Scour our regulations and compare them to those of our trading partners—or better yet simply let the U.S. Chamber of Commerce lead you—to identify those areas of “unnecessary” differences. What then? Eliminate the differences by rewriting U.S. regulations to those of our trading partners, so many of whom have terrible worker safety and environmental policies (hint: China). Nothing in the Order asks the agencies to conduct the hard negotiations or cooperation to change, let alone increase, the protections of our trading partners. The clear expectation is that “unnecessary” differences will lead to the United States conforming our standards to those of the foreign regulators. If “unnecessary” is read narrowly enough, the order could do little damage to our environmental and public health protections—but the pressures and signals in this Order all point toward an expansive witch hunt for “unnecessary” regulatory differences. The Chamber of Commerce’s unusually zealous approval of this Order is not to be overlooked.
Full textIn its own words, the Administrative Conference of the United States (ACUS) is “an independent federal agency dedicated to improving the administrative process through consensus-driven applied research, providing nonpartisan expert advice and recommendations for improvement of federal agency procedures.”
On Tuesday afternoon, ACUS and the U.S. Chamber of Commerce are jointly sponsoring an event at the Chamber, “Next Steps & Implementation of ACUS Recommendations on: Incorporation by Reference & International Regulatory Cooperation.”
That’s over the line, particularly given the agenda of the event, argue CPR President Rena Steinzor and Member Scholar Thomas McGarity, in a letter to Paul Verkuil, ACUS’s Chairman. Steinzor and McGarity write:
Especially in this early period of its rebirth, the organization cannot afford to be perceived as taking sides in the enormously destructive crusade against regulation that the Chamber and other powerful industry groups are leading.
The letter is here.
Full textLast week, Bloomberg News ran a curious story conflating a range of issues under the banner of regulatory rollbacks. The piece keys off of the ongoing GOP push to deregulate America. That effort has been going on for decades, of course, but in the wake of the recession (made possible, not coincidentally, by deregulation in the economic sector), GOP leaders and their business allies and funders have rebranded it, and now argue that that "burdensome" economic, health, safety and environmental regulations are in fact the cause of economic distress.
Most of the GOP rhetoric has been aimed at federal regulation. But the Bloomberg piece breaks some new ground, sweeping together a hodgepodge of state regulations and laws, overlaying it with an uncritical reference to some shoddy right-wing research, and presenting the resulting brew as the state and local expression of the GOP's anti-regulatory campaign.
In the first three paragraphs of the story, the reader is given purported evidence that regulations are bad for the economy, and treated to a quote from a blogger for the right-wing Americans for Tax Reform (ATR) alerting us to a "national focus on reducing regulation…some of [which] is about jobs and revenue and some of [which] is about less government."
The supposed evidence of regulatory burden is an unattributed study (the article eventually explains it was "issued" by then-Governor Arnold Schwarzenegger, but never names the source) concluding that "regulation cut gross state output in California by $493 billion a year." A little Googling reveals that the study was conducted by two researchers at California State University, Sacramento, apparently under contract from the Governor's Office of Small Business Advocate. Much as a similar report from the U.S. Small Business Administration's Office of Advocacy has been discredited by a number of sources for its ridiculous methodology, the California version uses similar methods and got similar reviews. California's nonpartisan Legislative Analyst's Office dismembers its methodology and conclusions, making clear that it piles bad estimates on top of bad methodology, charitably describing its flaws with words like "deficient," "problems," "special difficulties, "inappropriate," and "overstated." Bloomberg, on the other hand, presents it as if its calculation were the revealed truth.
Full textThe irony is palpable, though clearly intentional. More than forty years ago, Congress kicked off the “environmental decade” by adopting the National Environmental Policy Act (NEPA). NEPA’s goals are to ensure that federal agencies whose developmental missions often incline them to ignore or place a low priority on environmental protection to consider the possible adverse environmental consequences of major actions before committing to them, and to make the results of that evaluation publicly available. NEPA sought to assure balanced consideration of the economic and social benefits of proposed agency actions that tended to be the focus of private proponents and the agencies themselves, and the environmental costs that previously had received short shrift. Assessments of NEPA differ, but many environmental policy experts agree that the law has effectively forced agencies to look at possible adverse environmental consequences before they leap into project approval and implementation. NEPA’s most important practical impact may have been bringing to light environmental problems that agencies have been able to mitigate or eliminate at reasonable costs and without sacrificing project goals.
Taking their cue from NEPA’s successful integration of environmental matters into agency decisionmaking processes, developers, industry, and their political allies in the ensuing years lobbied for and got a series of statutes and executive orders in the ensuing years that require agencies whose missions are to protect health, safety, and the environment to place greater emphasis on the economic impacts of regulatory decisions. These laws have slowed down the regulatory process and contributed to weaker regulations. Now, the same forces that sought to restore “balance” in the wake of NEPA’s focus on environmental concerns, by forcing regulatory agencies to place more emphasis on economic impacts, are supporting legislation that would significantly undercut NEPA by handcuffing the ability of agencies to conscientiously implement that law. Adoption of this legislation would go a long way to recreating exactly the problem Congress targeted when it adopted NEPA – a skewing of government decisionmaking processes toward approval of projects regardless of their potential adverse environmental effects.
Full textOn March 19, in a major economic policy address, Mitt Romney painted a portrait of a real-life "victim" of the Obama Administration’s supposed overregulation:
This administration’s burdensome regulations are even invading the freedom of everyday Americans. Mike and Chantell Sackett run a small business in Idaho. They saved enough money to buy a piece of property and build a modest home on it. But days after they broke ground, an EPA regulator told them to stop digging. The EPA said they were building on a wetland. But the Sacketts’ property isn’t on the wetlands register. It sits in a residential area.
Nevertheless, the EPA wouldn’t let them appeal the decision. It told the Sacketts they weren’t allowed to go to court. An unelected government bureaucrat robbed them of their freedom.
They were given no recourse, no remedy. They could do what the EPA wanted, or they could risk millions of dollars in fines.
The New York Times report that afternoon on the speech, by Ashley Parker, noted some important information that the Romney camp either missed or ignored:
However, Mr. Romney did not mention that the Sacketts encountered their run-in with the EPA under President George W. Bush’s administration, not under Mr. Obama.
A spokeswoman for Mr. Romney’s campaign did not respond to questions about the discrepancy.
Oops!
Full textThis post was written by CPR President Rena Steinzor and CPR Policy Analyst James Goodwin.
Earlier today, OIRA Administrator Cass Sunstein released a new memorandum to agencies directing them to consider and account for the “cumulative” costs of their regulations. Attacking the cumulative costs of regulation has been a favored tactic among regulated industries and their allies in Congress (it's a feature in many anti-regulatory bills, such as the Regulatory Accountability Act). Rather than responding forcefully to the faulty cumulative costs premise, the Obama Administration has instead bought into it. The memo outlines principles and not specific technical prescriptions for how rules will be written, but it’s likely the agencies will follow the directions from the White House. What we’re left with is a solution in search of a problem that could further delay or derail badly needed solutions to real problems.
As with so many of the arguments offered by regulatory opponents, the cumulative burdens concept is intended to provide a one-sided view of regulations—one that focuses exclusively on the costs of regulations without any consideration of their benefits. Such a one-sided view, of course, provides no useful information about the real value of regulations. Rather, it portrays them as an inescapable drain on the economy, while ignoring how they help people by saving lives or preserving irreplaceable ecosystems for future generations.
Counting up all the costs of all the regulations that affect an industrial sector would be a time-consuming task, although what problem careful attention to the cumulative costs of regulations would solve is far from clear. Obviously, fans of this number crunching hope to to identify areas were regulatory costs can be reduced. Conceivably, heightened awareness of how all applicable regulations affect a sector could promote streamlining of the paperwork that regulated entities must submit. For example, the EPA might design a new electronic form for power plants to fill out regarding their emissions of two different air pollutants, rather than having those power plants fill out two separate electronic reports.
Full textOn Tuesday, the House Judiciary committee is marking up the Regulatory Freeze for Jobs Act (H.R. 4078), which would block virtually any “significant regulatory action”—basically, any step toward promulgating any regulation that has a large economic impact or is otherwise controversial— as long as unemployment is over 6 percent. Rather than support initiatives that actually help the unemployed, a band of House Republicans prefer another cheap political trick here. The reality is that a moratorium would leave millions of Americans more vulnerable to health, safety, environmental, and economic risks, without improving the economy at all. In fact, the bill has the potential to shrink economic activity, not grow it.
To begin with, all of the economic studies agree: regulation does not cause a net loss in jobs. As other CPR Member Scholars and I have discussed (see here, here, here, here and here, for example), the reason is simple. Firms subject to regulation spend money on compliance, which creates additional jobs. The number of those jobs offsets any employment lost in the industry being regulated. There is even evidence that regulation can lead to a net increase in jobs. To the extent this is true, the Republicans’ effort to bolster employment with a regulatory moratorium will actually decrease it – it might be an actual “job killer.” Congressional Budget Office (CBO) Director Douglas Elmendorf raised the concern of reduced private sector investment caused by delaying or weakening environmental rules when he testified (p.49) before the Senate Budget Committee last November.
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