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Senate Hearing to Bring Some Sanity to the Debate Over Federal Regulatory Policy

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.

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Ash Time Goes By: Administration Continues Foot-Dragging on Coal Ash Rule as Toxic Landfills and Ash Ponds Grow by 94 Million Tons Each Year

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.

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By the Numbers: The Costs of New Regulatory Delays Announced in the Spring 2013 Regulatory Agenda

“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.

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Obama 2.0: Looking Forward, Mindful of the Past

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.

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The Ugly Side of Interagency Review: Non-Expert Federal Agency Commenters Tried to Tell Expert EPA That Ozone Doesn't Actually Kill People

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.)

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The Unpopularity of Cost-Benefit Analysis

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.

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Two Years After Upper Big Branch Disaster, Where Are the Reforms?

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.

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Obama Administration's Latest Sop to the Anti-Regulatory Crowd: Buying the Cumulative Burden Pitch

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.

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CPR Issue Alert: Administration's Failure to Adopt Needed Safeguards in a Timely Way is Costing Lives and Money

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.

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Three Years After Tennessee Disaster, U.S. Effort to Prevent the Next Coal Ash Catastrophe Faces Uncertain Future

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.

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