This 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 text
The toll: An estimated 6,500 to 17,967 premature deaths, 9,867 non-fatal heart attacks, 3,947 cases of chronic bronchitis, and more than 2.3 million lost work and school days. That's just a partial tally of the costs Americans will bear because of unjustified delays in two critical health and safety regulations. More broadly, the Administration’s Fall 2011 Regulatory Agenda—released late, at the end of January of 2012—shows how many of the most important rules currently in the regulatory pipeline are being similarly delayed, leaving people and the environment inadequately protected against a number of unreasonable risks, possibly for years to come.
Working from the latest regulatory agenda, a new CPR Issue Alert assesses the Obama Administration’s progress in completing 12 key regulatory actions identified in a CPR white paper issued last April. A group of CPR Member Scholars and CPR Policy Analysts warned in that paper that the Administration’s failure to bring a sense of urgency to the job of completing the rules had opened the door to the very real prospect that nine of the twelve might get caught up in the backwash of the 2012 presidential campaign, and indeed might never be completed by the current Administration.
That bleak prediction is coming true before our eyes. Progress on the great majority of these regulatory actions has been delayed further over the last 10 months, and it is now likely most of the rules will not go into effect during the current presidential term.Full text
Three years ago today, an earthen wall holding back a giant coal ash impoundment failed in Kingston, Tennessee, sending more than a billion gallons of coal ash slurry over nearby land and into the Emory River. The ash had chemicals including arsenic, lead, and mercury. Clean up costs could be as much as $1.2 billion.
Public policy progress often comes in the wake of disasters. But three years after Kingston, it very much remains to be seen whether that disaster will at least lead to the needed regulations to stop the next one. Can EPA get the train back on the track? I hope so.
EPA had pledged that it would publish a proposed rule on coal ash by the end of 2009. But because OMB all but hijacked the process, the proposed rule didn't come until May 2010, and it was actually multiple proposals, not one, adding unnecessary complexity to EPA’s task of producing a draft final rule.
Okay, I lifted those first three paragraphs from my post on the Kingston anniversary last year, changing the “two years” to three. The sad truth is, not all that much has changed on the coal ash front in the last year.Full text
The environmental community breathed a small sigh of relief last week when congressional negotiators released a spending bill without policy riders that would have prevented EPA from advancing rules on greenhouse gases, endangered species, and coal ash. One rider that was included will slow EPA’s efforts to assess toxic chemicals’ potential health effects under the Integrated Risk Information System (IRIS) process. Although the rider was substantially revised from a version floated in the House in July, it will still delay important public health protections on arsenic and other toxic chemicals.
Ever since the National Research Council released its review of the IRIS formaldehyde assessment in April, the chemical industry and its GOP allies have been arguing that the IRIS program should be stopped until EPA revamps its process for assessing chemical risks. The NRC committee went beyond its charge of assessing EPA’s draft formaldehyde assessment and included some significant criticisms regarding the form of recent IRIS assessments and EPA’s transparency about its methods for developing assessments. But even though NRC’s complaints were serious, the reviewers were careful to state explicitly that EPA should not delay even the formaldehyde assessment as the agency works toward implementing NRC’s recommendations for improving the IRIS process.
The chemical industry’s congressional backers like to embrace the NRC report, but conveniently omit the part about not stalling current assessments. These industry backers shoehorned some particularly extreme riders into the budget bill debated in the House in July. Among other things, they could have stopped EPA from issuing air toxics regulations or Superfund cleanup decisions based on existing IRIS values, making the current database useless and preventing enforcement of many existing rules.Full text
The CPR white paper on OIRA earlier this week looked at how this little office within OMB facilitates an industry-dominated process that serves to weaken regulations proposed by federal agencies. Appearances by industry representatives have outnumbered those by public interest lobbyists more than 5-to-1 in meetings at OIRA in the last ten years, the paper found (3,763 to 708, for the record).
Does it have to be this way?
The Obama Administration has said on numerous occasions that it has an “open door” policy at OIRA. But while “open door” sounds good in theory, the hard evidence shows that this very policy facilitates industry’s domination of the process.
The Administration has actually defended the open door policy by going one step further, such as with these words from then-OMB spokesman Tom Gavin:
Gavin said the White House office is required by executive order to meet with all interested parties who request a meeting. The office has not refused a meeting with anyone who has asked for one, he said.
As the white paper notes, no such provision in an executive order actually exists – not in EO 12,866, nor in the more recent EO 13,563. (The Administration also made the claim here.)Full text
The residents of Kingston, Tennessee had no inkling that the Christmas of 2008 would be any different than another year. In the wee morning hours three days before the holiday, an earthen dam holding back a 40-acre surface impoundment at a Tennessee Valley Authority (TVA) power plant burst, releasing 1 billion gallons of inky coal ash sludge across Kingston, Tennessee. The sludge flood crossed a river, destroying 26 houses. One had a man inside, and was lifted off its foundation and moved 40 feet downhill. In the end, the spill covered 300 acres in four to five feet of sludge and mud. Estimated cleanup costs are more than $1.2 billion.
On Friday, inspired by relentless electric utility industry lobbying, House Republicans and some three dozen Democrat colleagues voted to gut a proposed Environmental Protection Agency (EPA) rule that had the potential to get a grip on the dangerous state of affairs at similar dumps across the country. With luck, the Senate will not take up the bill because although President Obama issued a statement opposing it, he stopped short of the veto threat that is the only way to build a firewall against such initiatives. The President’s weak knees on this are no surprise. As we have observed previously in this space, his Office of Information and Regulatory Affairs, which serves as a perpetual barrier to protective EPA rules that inconvenience industry more than it cares to be inconvenienced, had already compromised the EPA proposal by forcing the agency to propose a strong rule alongside a weak rule, signaling the Administration’s lack of commitment to the initiative.
Just how dangerous and how ubiquitous are Kingston’s brother facilities? In one bizarre twist, in June 2009, the Obama Administration refused to disclose the location of 44 such sites for fear that terrorists would target them for sabotage, causing grave damage and even death in surrounding communities. It’s easy to see why the sites prompt such concerns.
In 2008, some 495 electric plants generated 136 million tons of ash. Utilities disposed of about 34 percent (46 million tons) in so-called “dry” landfills that, at least in theory, cover deposits so that rainfall cannot infiltrate them. But another 22 percent (29.4 million tons) went into “surface impoundments” like the one at Kingston—the term, of course, is a euphemism for a big, waterlogged pit in the ground, shored up by planks, walls, fences, or any other “structure” the companies thought was appropriate as long as five decades ago. The threat of collapse is particularly acute for surface impoundments: some 186 of the 584 estimated to be operating in the United States were not designed by a professional engineer. Fifty-six of these units are older than 50 years, 96 are older than 40 years, and 340 are between 26-40 years old.
The dumps also cause long-term environmental damage. Thirty-one percent of landfills and 62 percent of surface impoundments lack liners to contain leaching of hazardous constituents like mercury, cadmium, lead, and arsenic into underground aquifers. Half of the American people rely on groundwater for their drinking water supplies.Full text
House Republicans are fond of accusing the Obama Administration of trying to “regulate when it cannot legislate.” With a slight modification, a similar accusation can be hurled at House Republicans: They are trying to appropriate when they cannot legislate. This accusation has the benefit of actually being true.
The Fiscal Year 2012 appropriations bill for the EPA and the Department of Interior, currently being debated in the People’s House, is loaded down with dozens of anti-environment and anti-public safety policy riders. Several of these riders are virtually identical to bills that have been considered or are being considered in the House, but which have no chance of passing the Senate or surviving a presidential veto. These riders include a measure that prohibits the EPA from regulating coal ash as a hazardous waste (Section 434), blocks the EPA’s efforts to regulate greenhouse gases (Section 431), exempts offshore oil drilling facilities from several Clean Air Act requirements (Section 443), among others.
None of these policy riders would save the American taxpayer a single dime. They do, however, offer House Republicans a better chance to advance their anti-regulatory agenda than would a stand-alone bill—a wildly inappropriate end-run around the constitutionally mandated legislative process designed to provide their corporate benefactors with benefits that would otherwise be opposed by the majority of Americans.Full text
In April, CPR released a paper that looked at 12 critical rulemaking activities that we urged the Obama administration to finish by June 2012. The new regulatory agendas released by the agencies earlier this month show that instead of moving forward, the agencies are often slowing down. Contrary to the “tsunami” of regulations that the Chamber of Commerce claims is hampering economic recovery, this is a molasses flow that will delay life-saving public protections for workers, air breathers and water drinkers.
One rule that was on track in April is now definitely off track: an update to the National Ambient Air Quality Standard (NAAQS) for particulate matter. Another rule that was on track is now probably off track: the Power Plant New Source Performance Standards for limiting greenhouse gases were pushed back from May 2012 to Jun 2012, which is the deadline we identified to complete rules in Obama’s first term (after that point, re-election politics will likely stifle any continued efforts to finish important rulemakings, and, in any event, rules completed after that point risk being overturned under the Congressional Review Act if Republicans are able to win both houses of Congress and the White House in the 2012 elections).
All or parts of eight of the rulemaking activities highlighted in the paper have been severely delayed since the paper was released in April:
The nation’s capital is all but intolerable these days, even for those of us who have lived here for decades and are used to excessive histrionics and gross summer weather. A pall of bad, hot, wet air has settled over the place, and serves as a backdrop to the slow-motion car wreck that is the debt ceiling negotiations—in every sense a crisis of political creation. In the midst of this misery, a small spark of comic relief was provided yesterday by the spectacle of hundreds of top-level business executives, led by the Business Roundtable and the Chamber of Commerce, pleading with their Tea Party allies not to run the economy into a ditch by provoking a default on the country’s financial obligations to institutions and governments across the globe. Having hitched its political wagon to a team of wild horses, big business has gone to the whip now that right-wing irrationality has impinged on its financial interests.
In fact, for years, big business has ridden quietly along while various brands of fiercely ideological conservatives drove the political wagon for the Republican party. Happily for them, the big business agenda—corporate welfare and the decimation of regulations that would rein in financial institutions; help blue-collar workers, and protect the environmental—fit neatly into the anti-“big government” mantra of their allies. When the Tea Party emerged, it seemed like the dance would never end. Dozens of newly elected Republicans were only too happy to make regulation the whipping boy for every problem that ails the economy, if only as a distraction from the real causes of the recession, which, let’s face it, have a lot to do with Republican anti-regulatory policies. Even better, the new Republican majority scheduled dozens of hearings aimed at brow-beating dozens of Administration officials from a cross-section of federal regulatory agencies. From Elizabeth Warren at the Consumer Financial Protection Bureau, to Lisa Jackson at the Environmental Protection Agency, to David Michaels at the Occupational Health and Safety Administration, the Republicans are eager to blame the Obama Administration for the length and depth of the recession that began on the GOP’s watch.Full text
Last week, the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget released the semiannual regulatory agenda. I pointed out that the agenda, which contains the regulatory agencies’ planned actions, was quite late. Although the plans share problems from past years, like simply pushing back the target dates for regulatory actions, there are some pleasant surprises. For example, the National Highway Traffic Safety Administration (NHTSA) is moving forward with some proactive regulatory responses to the Toyota recalls of 2009, and the EPA plans to propose or finalize updates to National Emissions Standards for Hazardous Air Pollutants (NESHAPs) for 30 sources. Here’s an overview of some highlights (not covering everything) from the regulatory plans. More information about each individual rulemaking can be found by following the links.
Occupational Safety and Health Administration