President 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.Full text
Internal EPA emails obtained by CPR though a FOIA request reveals that representatives from one or more of the EPA’s peer agencies second-guessed a critical scientific finding undergirding the EPA’s then-pending draft final rule to tighten the ozone standard, claiming that ozone is not associated with mortality impacts. The EPA’s final proposal rightly disregarded the unsound comments and included information on how reducing ozone pollution saves lives. The rule, estimated to save thousands of lives, was later blocked by the White House. The email provides a rare glimpse at how peer agencies abuse the interagency commenting process by attacking other agencies’ rules—often on matters on which they have comparatively little expertise.
In the August 3, 2011, email, sent while the draft final rule was still undergoing review at the White House Office of Information and Regulatory Affairs (OIRA), Karen Martin, an EPA scientist who was working on the rule, provided her colleagues her initial impressions on the interagency comments regarding the rule, which OIRA had just recently forwarded to the EPA. Martin noted that some commenters, un-named staff from one of the EPA’s peer agencies, questioned the EPA’s assumption that higher ozone levels contribute to premature deaths. Martin directly quoted a “set of commenters” who recommended that “EPA remove the assumption that ozone is associated with mortality impacts.” The interagency comments themselves are not available publicly and were not included in the batch of documents sent by EPA in response to CPR's FOIA request.
While technical-sounding, the assumption about the relationship between elevated ozone levels and premature deaths formed a critical part of the agency’s regulatory impact analysis for the rule. (The draft final analysis, which was the subject of the interagency complaints, is available here.) In the regulatory impact analysis, the agency explains that it included this assumption at the recommendation of the National Academy of Science (see page 3). The monetized benefits of preventing ozone-related mortality was to be the second largest source of the rule’s benefits (see page 34); thus, the failure to include these benefits would serve only to distort the rule’s cost-benefit analysis more. (As practiced, several inherent methodological flaws lead cost-benefit analysis to over-count costs while under-counting benefits, rendering it systematically biased against protective regulations.)Full text
If cost-benefit analysis (CBA) is really part of the furniture, you wouldn’t think recently departed OIRA Administrator Cass Sunstein would need to dedicate a column to convincing us it’s so. But there it is, and though Sunstein is now but a private citizen like the rest of us, the claims merit a response.
We’re told “cost-benefit analysis has become part of the informal constitution of the U.S. regulatory state,” but that’s some odd constitution – not approved by any legislative body (and often, in fact, at odds with the dictates of the U.S. Congress), followed very selectively, and adjusted quickly at the whims of pressure from powerful industries. Billed as a non-ideological analytical tool, CBA today is in fact the opposite: questionable value judgments masked as technical calculations, all used as window-dressing to block rules that benefit the public but upset powerful industries.
Big industries and conservative think tanks spent years pushing CBA. It never made sense for the public. Cost-benefit says, for example, that a polluter can’t foul a waterway and kill a couple people along the way, unless it makes a whole lot of money doing it. It pretended that the costs and benefits are being put on the same one actor (society). In reality, one party (the polluter) had already put costs on the other (the public). Regulations seek to address that, but CBA starts with the premise that the polluters have the right to inflict the costs – a convenient starting point for a bargain.Full text
Congress usually enacts new public protections following a major crisis or series of crises that focus attention on the failure of existing laws to protect the public or the environment from abuses by companies pursuing economic gain.
Most of the protective regulatory programs of the Progressive Era, the New Deal, and the Public Interest Era (the period of active government extending roughly from the mid-1960s through the mid-1970s) were established after widely publicized tragedies or abuses stirred public opinion to levels sufficient to overcome the inertial forces that otherwise overwhelm Congress and the regulatory agencies.
Federal regulation of mine safety and health is an excellent example of this phenomenon.
The Federal Coal Mine Health and Safety Act of 1969 was enacted in direct response to the November 20, 1968 explosion at the Consolidation Coal Company’s Console Number 9 mine in Farmington, West Virginia that killed 75 miners and 3 federal inspectors. That disaster also inspired Congress to enact the Occupational Safety and Health Act of 1970.
Congress enacted the Federal Mine Safety and Health Act of 1977 in response to explosions on March 11 and 13, 1976 at the Scotia Coal Company’s Scotia mine in Ovenfork, Kentucky. The initial explosion killed 15 miners, and a second explosion two days later took the lives of three federal inspectors and eight members of two rescue teams.
An explosion at International Coal Company’s Sago mine in Buckhannon, West Virginia on the morning of January 2, 2006 killed 13 miners and motivated Congress to enact the Mine Improvement and New Emergency Response (MINER) Act of 2006.Full text
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