Congratulations to our friends at Earthjustice and their clients for a tremendous victory in federal district court today. Judge Reggie Walton (a George W. Bush appointee) ordered the Obama Administration to provide a schedule for regulating coal ash within the next 60 days. This epic battle now shifts back to the White House and Congress where nearly hysterical electric utilities that depend on coal-fired power plants will sweep in, aided by some very twisted economics from strong regulation’s staunch nemesis, the Office of Information and Regulatory Affairs (OIRA).
The coal ash crisis burst onto the national scene shortly before Christmas day, 2008, when the contents of an enormous impoundment containing coal-ash slurry from the Tennessee Valley Authority’s (TVA) Kingston Fossil Fuel Plant poured into the Emory River. The proximate cause of the spill was the bursting of a poorly reinforced dike holding back a pit of sludge that towered 80 feet above the river and 40 feet above an adjacent road. The volume and force of the spill were so large that 1.1 billion gallons of the inky mess flowed across the river, inundating 300 acres of land in a layer four to five feet deep, uprooting trees, destroying three homes, and damaging dozens of others. Miraculously, no one was killed.
The Kingston spill was the worst of its kind in U.S. history, but it was not the first, nor would it be the last. For a brief period of time, the catastrophe focused the nation’s attention on the health and environmental risks posed by dumping coal ash in unlined pits in the ground euphemistically dubbed “surface impoundments.”
The slurry contained both fly and bottom ash from scrubbers that are mandatory on coal-fired plants. Because scrubbers trap fumes before they are emitted into ambient air, the fly-ash portion of the spill contained significantly more than the quota of toxic heavy metals that typically result from burning coal. Or, in other words, in an inevitable but ironic twist, the benefits to breathers were obtained at the expense of walkers and drinkers. The Kingston Spill had released around 2.6 million pounds of toxic pollutants into the Emory River. By way of comparison, all of the other power plants in the United States released just over 2 million pounds of toxic pollutants during all of 2007.
Prominent national environmental groups demanded greater protection from Congress and the Environmental Protection Agency (EPA), both of which had long skittered away from confronting the problem in the face of unyielding resistance by electrical utilities. Any hint of regulatory intervention that would compel the safer disposal of coal ash and the reinforcement of old, poorly designed dumps was pounced on by industry and carelessly maintained coal-ash dumps remain the status quo.
Enter OIRA. Its review of EPA’s proposal to regulate coal ash involved 33 meetings with industry representatives who argued that the most effective regulatory option proposed by EPA—requiring coal ash that is not recycled to go to lined pits with leak detection systems--would impose a ruinous “stigma” on the beneficial recycling of coal ash. EPA insisted that in decades of implementing the Resource Conservation and Recovery Act, the agency had never observed such an effect. Nevertheless, the revised cost-benefit analysis that emerged from OIRA review predicted that a stigma effect would result in $233.5 billion in “negative benefits” (i.e., costs) to society. Far weaker regulatory alternatives that would treat coal ash as if it was no more dangerous than ordinary household garbage were thus presented as the only cost-effective options.
We can only hope that Judge Walton’s deadline and a Congress preoccupied with preventing each other from ruining the nation’s economy will leave this issue to be resolved by the experts at EPA. Wishful thinking, to be sure. Stay tuned.Full text
Finally! After far too much hullabaloo about the cost of regulations, there was a U.S. Senate hearing today on why public health regulations are important, and how delays by Congress and the Administration have serious negative consequences for people’s lives. Senator Richard Blumenthal (D-CT) called the hearing entitled the first one conducted by the Senate Judiciary Committee’s newly created Subcommittee on Oversight, Federal Rights and Agency Action. The witnesses included a parent-turned advocate for automobile safety, AFL-CIO director of safety and health Peg Seminario, and law professor Rena Steinzor of the Center for Progressive Reform.
She went on to skewer industry lobbyists for the attacks on EPA’s efforts to regulate green house gas emissions, air quality standards, coal ash, stormwater runoff, PBDE’s and other chemicals. Steinzor’s testimony is punctuated throughout with powerful prose, such as:
Today, Center for Progressive Reform President Rena Steinzor will testify at a Senate Hearing hosted by the Judiciary Committee entitled "Justice Delayed: the Human Cost of Regulatory Paralysis."
Steinzor's testimony can be read in full here.
According to the testimony:
The subcommittee deserves tremendous credit for airing the truth about the public health regulations that agencies are writing as directed by Congress. The costs of delay are as real as they should be unnecessary, given the clear mandates of the law. Unfortunately, the overwhelming clout of Fortune 100 companies and their relentless, self-serving effort to ignore the great benefits provided by these essential protections has dominated the airwaves.
One does not need to look far to see how essential regulations are. Just ask anyone whose life was saved by a seat belt, whose children escaped brain damage because the EPA took lead out of gas, who turns on the faucet knowing the water will be clean, who takes drugs for a chronic illness confident the medicine will make them better, who avoided having their hand mangled in machinery on the job because an emergency switch was there to cut off the motor, who has taken their kids on a trip to a heritage national park to see a bald eagle that was saved from the brink of extinction—the list goes on and on.
The EPA’s regulations are among the most beneficial safeguards the U.S. regulatory system has ever produced. For example, a 2011 EPA analysis assessing Clean Air Act regulations found that in 2010 these rules saved 164,300 adult lives and prevented 13 million days of work loss and 3.2 million days of school loss due to pollution-related illnesses such as asthma. By 2020, if the rules are issued promptly and Congress resists shrill demands that it derail them yet again, the annual benefits of these rules will include 237,000 adult lives saved as well as the prevention of 17 million work loss days and 5.4 million school loss days. Even the most conservative practitioners of cost-benefit analysis, including John Graham, President Bush’s regulatory czar, acknowledge what an amazing bang for the buck these regulations deliver in relationship to the costs they impose.
Conversely, because Clean Air Act regulations have been so long delayed—after all, Congress passed the Clean Air Act Amendments in 1990 and we sit here 23 years later—thousands of additional lives have been lost, hundreds of thousands of people have had heart attacks and visited the hospital because of respiratory illness, and people have lost millions of days off work and out of school.
Tomorrow, a new panel in the Senate Judiciary Committee—the Subcommittee on Oversight, Federal Rights, and Agency Action—will bring some much-need sanity to the discussion of federal regulatory policy when it holds a hearing entitled “Justice Delayed: The Human Cost of Regulatory Paralysis.” What’s so refreshing about this hearing is that it starts from the premise that blocked and delayed safeguards are a problem that needs to be solved.
Crucially, this hearing will provide an opportunity to shine a light on the costs that are imposed on the public when regulations aimed at protecting people and the environment are unnecessarily delayed. These costs represent real harm to real people—and they are by definition preventable.
Previously, in this space, I examined the costs to the public that would result from the new delays to three rules that were announced in the Spring 2013 Regulatory Agenda. These included at least 300 premature deaths from the delay of the National Highway Traffic Safety Administration’s (NHTSA) Rearview Mirror Rule and at least 1,000 premature deaths and 1,467 non-fatal heart attacks that would result from the delay of the EPA’s updated ozone National Ambient Air Quality Standard (NAAQS). All of these costs are preventable, but not prevented.
Several of the scheduled witnesses for tomorrow’s Senate Judiciary hearing will help to provide a clear picture of what the costs of regulatory delay entail. CPR President Rena Steinzor will testify about how environmental regulations have benefited the public greatly, and how the continued delay of several pending safeguards—such as the Environmental Protection Agency’s (EPA) rules to control disposal of hazardous coal ash waste and to require cleaner-burning automobile fuel—produce great harm.
Tomorrow’s hearing is a welcome development, because when it comes to the issue of federal regulatory policy, sanity has been in short supply on Capitol Hill for the last four-plus years. And the timing of the hearing couldn’t be better, as it takes place during what House Republicans are calling “Stop Government Abuse Week,” a week dedicated to bashing public servants and voting on ill-conceived bills, including the REINS Act and the Energy Consumers Relief Act, which if passed, would make it all but impossible for the EPA and other agencies to carry out their congressionally mandated missions of safeguarding the public.Full text
Three years after the EPA proposed a rule to protect communities from coal ash—a byproduct of coal-power generation that’s filled with toxic chemicals like arsenic, lead, and mercury—a final rule is still nowhere in sight. Meanwhile, power plants are dumping an additional 94 million tons of it every year into wet-ash ponds and dry landfills that are already filled to capacity.
Seemingly untouched by this sense of looming disaster, the Obama Administration continues to dawdle in the face of resistance from the coal industry and perennial attempts from House Republicans to deprive the EPA of its authority over the issue. As the EPA fiddles with new power-plant data and reassesses the rule ad nauseam, the next coal ash catastrophe is waiting to happen. As we examine the wreckage, we’ll have to remember how this rule gathered dust on the Administration’s desk.
A Brief History of a Not-So-Brief Rulemaking
Although the EPA has debated whether to regulate coal ash for decades, the issue took on a new urgency after 1.1 billion gallons of ash slurry spilled from a ruptured dam in Kingston, Tennessee in 2008, doing irreversible damage to the surrounding community (but miraculously killing no one). The spill refocused attention not only on unstable ash ponds, but also on the leaching of chemicals into groundwater from unlined or improperly lined waste sites, and the spewing of dry ash into the air. Exposure to the toxic ash can cause cancer, birth defects, and a host of neurological and respiratory disorders, as nearby communities are painfully aware. (See here for a brand-new series of excellent films on coal ash).
After Kingston, the EPA promptly drafted a proposal that would regulate coal ash as hazardous waste, setting enforceable, nationwide standards for management and disposal. But before being released, the proposal had to pass through the deregulatory gauntlet of the White House Office of Information and Regulatory Affairs’ (OIRA) review process, which went four months beyond its deadline. During that time, industry groups met with OIRA a staggering 33 times, a record even for the heavily lobbied OIRA. They claimed that hazardous-waste regulation would impose a costly “stigma” on the use of recycled ash (in construction and landscaping materials), which would dwarf any benefits to public health and safety.
By the time the White House was through with the proposal in June 2010, it had become bloated with weak options that would regulate coal ash as “non-hazardous solid waste,” leaving in place a dysfunctional patchwork of state regulations with no federal oversight. The proposal was accompanied by a severely flawed cost-benefit analysis designed to make the weak options look attractive by embracing the industry’s unfounded stigma argument.
The coal-utility and ash-recycling industries launched a massive lobbying campaign in Congress and in public to further block the rule. The EPA was flooded with 425,000 comments, and the enormous task of sifting through them became part-reason, part-excuse for delaying the final rule—first beyond 2011, then to the end of 2012 or the beginning of 2013, and finally into 2014.
“April showers bring May flowers.” To that well-known spring-related proverb one might soon add “the Spring Regulatory Agenda brings new groundless complaints from corporate interests and their anti-regulatory allies in Congress about so-called regulatory overreach.” Last Wednesday, the Obama Administration issued the 2013 edition of the Spring Regulatory Agenda, one of two documents the President must issue every year (the other is published in the fall) that compiles and summarizes the various regulatory actions that the Administration expects to take in the near future. Over the past few years, regulatory opponents have grown fond of pointing to the Spring and Fall Regulatory Agendas as still further evidence of the so-called “regulatory tsunami” that is allegedly hindering the economy and to support their campaign to “reform” our regulatory system. I expect that these same groups will waste little time in the coming days to misrepresent the latest regulatory agenda to bolster their attacks on our system of regulatory safeguards.
In fact, a careful comparison of one Regulatory Agenda to the next reveals just the opposite of what regulatory opponents claim: progress on needed safeguards has all but stalled, as new rules have become subject to new delay upon new delay. Rather than documenting a flurry rulemaking activity, the semiannual Regulatory Agenda has become more of a litany of the latest delays of and extensions to expected timelines for issuing proposals or final rules.Full text
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