The confirmation hearing for Howard Shelanski, President Obama’s pick to serve as the Administrator of the White House Office of Information and Regulatory Affairs (OIRA) is set to take place Wednesday before the Senate Homeland Security and Government Affairs Committee. If confirmed, Shelanski would become the Administration’s new “Regulatory Czar,” a description that indicates the significant influence OIRA’s administrator has concerning what agency rules look like and, indeed, whether those rules are issued at all.
Shelanski’s confirmation hearing comes at a crucial juncture in the Obama presidency. Progress on many important rules has been halted, including the EPA’ rule to limit greenhouse gas emissions from future power plants. Of the 139 reviews currently pending at OIRA, 71 are beyond the 90-day limit set by Executive Order 12866. A number of rules have been under review for a year or even two years. If the President is to live up to his promise in his first post-election State of the Union address to take decisive action on pressing issues such as climate change, OIRA will have to change its tune. We will be listening during the hearing to see whether Shelanski is prepared to finish up regulations that are necessary to protect the public and the environment, rather than continuing the tortoise-like review process that has characterized the President’s first term. The answers to the following questions will provide the answer:
Will Shelanski ensure the quick completion of reviews for rules that have been stuck at OIRA for well beyond the 90-day limit in Executive Order 12866? Senators should ask about the many rules that are pending at OIRA, such as the EPA’s Chemicals of Concern rule (stuck since May, 2010); the Department of Transportation’s Requirements for the Transportation Of Lithium Batteries (since October, 2010); the Occupational Safety and Health Administration’s (OSHA) Silica rule (since February, 2011), OSHA’s Injury and Illness Recording Requirements (since November, 2011); the National Highway Traffic Safety Administration’s Rearview Camera rule (since November, 2011 despite a legislative deadline of February, 2011); and the Department of Energy’s Federal Building Standards rule (since December, 2011).Full text
Late Tuesday afternoon, Senators Sheldon Whitehouse (D-RI), Tom Harkin (D-IA), Ben Cardin (D-MD), and Richard Blumenthal (D-CT) and U.S. Representatives Henry A. Waxman (D-CA) and Ed Markey (D-MA) sent a letter to White House Office of Management and Budget Director Sylvia Burwell urging her to take "prompt action" to implement rules and regulations held up at the Office of Information and Regulatory Affairs (OIRA). The letter notes that under Executive Order 12866, OIRA reviews of agency draft rules must be completed within 90 days, and that 14 of the 20 EPA rules currently undergoing OIRA review have been languishing for more than 90 days, 13 of them for more than a year.
In a statement this morning, CPR's Robert Verchick, a former EPA official, applauded the Members of Congress for taking on the issue. He said:
Congressional deadlock is often cited as the primary reason for government inaction, but as these key Members of Congress note in their letter, the President's own White House staff is delaying rules that could improve the quality of life for millions of Americans with the stroke of a pen.
EPA's proposed "Chemicals of Concern List rule" has been languishing at OIRA for more than three years, that for a proposal which would provide for nothing more than the simple disclosure of such potentially harmful chemicals, as phthalates, PBDEs, and BPA. Consumers and taxpayers deserve to know which cancer-causing and endocrine-disrupting chemicals are in the products they buy and use. But the President's OIRA is sitting on the rule. Action on this and the other rules bottled up at OIRA is long overdue. The Senators' and Representatives' letter reflects an appropriate sense of urgency.
Verchick was the Deputy Associate Administrator for Policy at the EPA during the first Obama Administration.
CPR Member Scholars have published extensively on the problems at OIRA. Read more on our Eye on OIRA page.Full text
As the scandal du jour over the pure lug-headedness of some IRS staffers reminds us, any screw-up, anywhere in the government, will make its way to the White House press briefing room in about a nanosecond of Internet real time. Suspicion is deeply bred into the press corps, and appropriately so. For that reason, the 2,000 or so people who directly serve on the President's White House staff, but who remain faceless to the rest of us, insist on maintaining control over anything that could embarrass him, including dozens of health, worker safety, and environmental rules that might engender so much as a whiff of controversy or attract a smidgen of opposition from powerful special interests.
In this vein, we look forward to the confirmation hearings of one of the few White House politicos actually subject to the Senate's advice and consent—Howard Shelanski, President Obama’s nominee for the powerful position of “regulatory czar,” a.k.a. Administrator of the Office of Information and Regulatory Affairs (OIRA), located within the White House Office of Management and Budget (OMB). Dr. Shelanski, a lawyer (Berkeley ’92) and Ph.D. economist (Berkeley ’93), was most recently the chief number-cruncher at the Federal Trade Commission (FTC), giving rise to speculation that he will spearhead an effort to bring independent agencies like the Securities and Exchange Commission (SEC) under Executive Order 12,866, which is read to require elaborate cost-benefit analyses before the issuance of any rule or guidance that upsets powerful industries.
Given the high dudgeon of investment bankers these days—the New York Times recently reported their determination to sabotage new derivatives (!!) rules under consideration at the Commodities Futures Trading Commission—bringing the independent agencies to heel is undoubtedly a priority for the waves of lobbyists who swarm the White House staff each morning. But we hope Shelanski will be called to account for a more appropriate agenda.
Notwithstanding the loud and endless gnashing of teeth by conservative groups, the truth is that the total number of significant, substantive rules issued in 2012 (848) was substantially lower than the number issued in the last year of the George W. Bush Administration (1,063), and 2013 looks to be shaping up as the lowest (at the current rate, a projected total of 579) since 1997. Some illuminating tables and a list of delayed rules prepared by regulatory analyst Curtis Copeland, a respected retiree from the Congressional Research Service who spoke at a recent CPR event, bear this out. In fact, counting all the little stuff, including routine approvals by the federal government of programs implemented by the states, at the rate it is going, the Obama Administration will produce this year considerably fewer than half the “rules” (1,360) that the George W. Bush Administration did in its last year in office (3,085).Full text
Energy policy in the United States is inextricably linked with questions of environmental protection. Thus, for example, the Obama administration will soon be called upon to decide whether to approve the Keystone XL pipeline, how much (and what kind) of regulation to impose on hydraulic fracturing for natural gas extraction, whether to regulate carbon emissions from existing coal-burning power plants, what proportion of federally owned lands should be devoted to mineral extraction, and whether to allow the expansion of oil and gas drilling in northern Alaska. Each of those pending decisions will not only affect the mix of sources available to meet the nation’s energy needs, but will also have immense consequences for the nation’s environment and, indeed, for the future of our planet.
This link between energy policy and environmental protection is nothing new. It has been evident at least since the beginning of the modern environmental era in the United States. Many of the precedent-setting judicial decisions throughout this era emerged from cases involving a potential clash between energy needs and environmental consequences. These have included disputes over the environmental impacts of coal leasing in the northern plains, offshore oil and gas leasing, geothermal development, hydroelectric power production that is potentially damaging to fish and other aquatic life, the issuance of patents to extract hardrock minerals, and the back end of the nuclear fuel cycle.
Despite this longstanding and apparent overlap of energy and environmental policy, it is perhaps unfortunate that energy law and environmental law in the United States are both based upon a disparate and complicated set of federal and state statutes, regulations, and policies. They exist in separate spheres, with occasional exceptions such as the amendments to the Federal Power Act that require the Federal Energy Regulatory Commission to take the impacts of hydroelectric power production on anadromous fish and other aquatic life into account when making licensing decisions on hydropower facilities. Notwithstanding this tendency toward fragmentation at the national level, one visionary statute may provide a valuable framework for harmonizing the nation’s important environmental concerns with its energy needs: the National Environmental Policy Act of 1969 (NEPA).Full text
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 text
Secretary of Interior Ken Salazar will leave a decidedly mixed legacy from his four years at the helm of the federal department responsible for protecting many of America’s vast open spaces, treasured parks, and disappearing wildlife.
Salazar’s Interior Department enjoyed some high-profile successes and on occasion took action to better protect important resources. It reached a multi-billion dollar settlement in the long-running and contentious Cobell litigation, a massive class action suit by Indian tribal members over government mismanagement of revenue from tribal resources. The Department under Salazar established seven new national parks and 10 new wildlife refuges.
But in many areas, while Interior took steps to respond to crises and restore some of the protections for land and wildlife that had languished for nearly a decade, it missed important opportunities to keep pace with twenty-first century threats to natural resources.
Salazar’s record on oil and gas development provides a good example. He angered Republicans and industry officials when he rolled back sweetheart oil and gas leases in Utah issued in the waning months of the Bush Administration. Confronted by the epic Deepwater Horizon spill, Salazar implemented a controversial moratorium on offshore drilling and overhauled the federal agency responsible for managing federal oil and gas leasing and development. On the other hand, Interior reforms ultimately stopped well short of those needed to better prevent future large oil spills, and the Department ramped up both on and offshore oil and gas leasing in the Arctic.Full text
A year ago this month, CPR published a white paper that laid out a two-phased action plan for federal agencies to take some critical steps toward protecting the public from Bisphenol-A (BPA). The report provided both short-term and long-term action items for the EPA, FDA, and OSHA that could establish stronger safeguards, risk assessment practices, and warning mechanisms for families and consumers concerning BPA and other endocrine-disrupting chemicals. We said an underlying requirement for both short-term and long-term action items is for federal agencies to acknowledge the unique low-dose effects and non-monotonic dose response curves (NMDRC) of endocrine-disrupting chemicals and adapt existing scientific protocols to reflect these unique risks.
Shortly before the conclusion of 2012, EPA announced a promising new effort in turning these action items into a reality. The agency is forming a working group dedicated to investigating and analyzing low-dose effects and NMDRCs for endocrine disrupting chemicals, and intends to release a “state of the science” paper, which will undergo peer review and “help inform how the safety of chemicals are assessed.” The working group will focus on three critical questions in conducting its work:
Cross-posted from The Pump Handle.
The good news is that in 2011 there were 53 fewer reported refinery accidents in Louisiana than there were in 2010. The bad news is that the 301 refinery accidents reported to the state in 2011 released nearly 50,000 pounds more air pollutants and nearly 1 million gallons more contaminants to soil and water than did the 354 accidents reported in 2010 – this according to a new report released Monday by the Louisiana Bucket Brigade and United Steelworkers. “Our aim is to collaborate with the refineries to solve the problem. Unfortunately that day hasn’t come yet,” said Louisiana Bucket Brigade founding director Anne Rolfes on a call with reporters. “Refinery managers continue to act as if they don’t have an accident problem. Until they face the facts, the oil industry, our economy, our environment and our health will suffer,” said Ms Rolfes.
The report’s release comes less than three weeks after a fire and explosion on an oil platform off the Louisiana coast killed three workers and injured 9, three seriously – and while a Shell Chemical in Norco, Louisiana continued to flare as it had for more than 30 hours.
The report, which is based on refineries’ reporting of accidents to the Louisiana Department of Environmental Quality (LDEQ), found that in 2011 the state’s 17 refineries reported to the state 301 accidents that released more than 1 million pounds of air contaminants and more than 1.3 million gallons of pollutants to soil and water. Among these emissions are sulfur dioxide, benzene, hydrogen sulfide, 1,3-butadiene, and miscellaneous other volatile organic compounds. These substances are all associated with potentially serious adverse health effects, including cardiovascular and respiratory diseases; neurological, immune and respiratory system impacts; and cancer. According to US Census figures and the report’s analysis, more than 200,000 people in Louisiana live within two miles of a refinery. This industry is “clearly externalizing its costs on Louisiana,” said Ms. Rolfes.Full text
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 text
Cross-posted from Legal Planet.
As already noted by Rick and Megan, last week BP pleaded guilty to 14 criminal counts arising from the 2010 Deepwater Horizon blowout in the Gulf of Mexico. Megan provided a good basic overview of the terms of the agreement. Here is the plea agreement itself. The amount of money BP has agreed to pay, in criminal fines and additional payments, has been the focus of most of the news coverage so far. The terms of BP’s probation have gotten less attention, but are well worth exploring.
Of course the amount of the fines and other payments matters. Never having had the experience of negotiating a plea agreement like this, I’m reluctant to speculate on whether the government could have gotten more out of BP. It’s too early to evaluate whether the punishment fits the offense, since civil sanctions and natural resource damages remain to be determined. The plea agreement specifies that the payments it requires do not affect its liability for civil claims or natural resource damages.
I was struck by the scope of the fines for the environmental offenses relative to the others. BP agreed to pay the maximum possible fine for each of the 11 manslaughter counts and the obstruction of Congress count. Together, the agreed fine for those counts totals $6 million, a tiny fraction of the total criminal fines. BP will pay another $100 million for violating the Migratory Bird Treaty Act, and a whopping (at least relatively speaking) $1.15 billion for violating the Clean Water Act.Full text