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
Following up on President Obama’s January Executive Order calling for agencies to conduct a regulatory “look-back,” the Administration today released a target list of health, safety, and environmental standards to be reviewed by agencies in the coming months, with an eye toward eliminating or modifying them.
The President’s January announcement was driven by politics, and from all appearances, the process of reviewing these regulations will be as well. In an op-ed in today’s Wall Street Journal, and in a speech today at the American Enterprise Institute – note the conservative venues chosen – “Regulatory Czar” Cass Sunstein, Administrator of the White House Office of Information and Regulatory Affairs, not only unveiled the target list but once again deployed the kind of anti-regulatory rhetoric one might expect from the Chamber of Commerce. Sunstein asserts that "Our goal is to change the regulatory culture of Washington by constantly asking what's working and what isn't. To achieve that goal, we need to obtain real-world evidence and data." The ugly implication, and it's incorrect, is that agencies don't currently carefully examine real-world evidence and data.
Several points stand out. First, what the White House initially billed last January as an objective examination of regulations appears to have been transformed into a blatantly one-sided effort to loosen restrictions on industry while paying little heed to the numerous threats to public health and the environment that remain unchecked. The Administration previously said that in addition to looking for regulations that are "excessively burdensome," it would also look for rules that are "insufficient" and might needed to be “expand[ed].” But today the notion of strengthening safeguards seems to have dropped out of the conversation.
Second, the Administration’s pandering to industry on this issue is in danger of doing long-term damage to the important business of protecting Americans from a variety of hazards. For one thing, the entire frame for this conversation, the one chosen by the White House in the President’s January op-ed in the Wall Street Journal, is that regulation is bad for the economy and needs to be trimmed back. In fact, regulation strengthens the economy, saves lives, keeps American healthy and safe, and in a variety of ways contributes to Americans’ quality of life. In addition, it’s worth noting that many of the rules identified today are not examples of bad rulemaking, but rather of rules that have simply been overtaken by technology—a reexamination of a rule requiring vapor recovery systems at gas stations that has become less crucial because automobiles now have similar technology on-board, for example. Such rules made sense when adopted, and should be updated as needed. But spare us the “stupid regulation” rhetoric, please.Full text
Before the Fukushima Daiichi nuclear disaster, before the BP oil spill in the Gulf of Mexico, and before the Upper Big Branch mine disaster, there was the TVA coal ash spill in Kingston, Tennessee. It was at Kingston, during the early morning hours on December 22, 2008, that an earthen dam holding back a 40-acre surface impoundment burst, releasing one billion gallons of inky sludge. The Kingston coal ash spill taught the American public about the catastrophic costs that can accompany so many types of large scale energy development; its aftermath continues to teach us that instituting the necessary reforms for protecting people and the environment against similar catastrophes in the future doesn’t come easy or quick.
Today marks the one-year anniversary since the EPA released its proposed rule for controlling the disposal of coal ash, a toxic byproduct of burning coal to produce energy that contains harmful chemicals like arsenic, lead, and mercury. That announcement came fully six months after the EPA had sent an initial strong proposal (October, 2009) to the Office of Information and Regulatory Affairs; OIRA then held the initiative, beyond its authorized time limit, conducting literally several dozen meetings, mostly with industry lobbyists, on the issue. When OIRA released the edited version and the EPA announced the proposal in May of 2010, CPR president Rena Steinzor lamented that the proposal—actually, a co-proposal of two strikingly different approaches to regulating the waste—seemed calculated more to “postpone[e] any definitive action for at least six months and, far more likely, a year or more” than to quickly and effectively resolve this looming threat to public safety and the environment. The circumstances of the past year have borne out this prediction; if anything, things may be far worse than anticipated.Full text
So far as regulatory safeguards are concerned, we've come a long way in 27 months. The Obama Administration started with federal agencies that had been devastated by eight years of an explicitly anti-regulatory president. Turning that around is not easy, and no President could do it in a day. So, as much as you see a lot of criticism in this space, you also see praise, because we've seen this Administration make important progress. From new rules on lead paint removal to construction crane safety to regulating greenhouse gases, there's a lot to applaud -- changes that will make real differences in people's lives.
But there are also a lot of rulemakings or other initiatives that fall somewhere in the "pending" category. Delay has a real cost in human health and lives. But the problem's not just that. It's that for many of these important safeguards, the administration runs the risk of not completing them at all, or not during this term. The political pressures against some of these health and safety protections in the name of maintaining industry business as usual can be huge.
A new CPR white paper today, Twelve Crucial Health, Safety, and Environmental Regulations: Will the Obama Administration Finish in Time?, identifies key rules that are critical but unfinished, and urges the administration to adopt a sense of urgency. Nine of the twelve regulations in the report are named as being in danger of not being completed during the President's first term.Full text
This afternoon at 1:00 p.m., the House Energy and Commerce Committee’s Subcommittee on Energy and Power will check one more box in the House GOP's ongoing effort to demonstrate its appreciation to the corporate interests that helped elect them, by holding a hearing on a proposal disingenuously called the Transparency in Regulatory Analysis of Impacts on the Nation Act of 2011, or as they acronym-ize it, the TRAIN Act.
As the name does not at all suggest, it’s a bill about undercutting environmental regulations that inconvenience the energy industry. The idea is to create a sort of non-environmentally minded Star Chamber to review the full slate of Clean Air Act and coal ash regulations, for the purpose of concluding that they cost too much. That’s not quite how they phrase it, of course, but that is the purpose.
Here’s an excerpt from the committee majority staff’s description of the bill:
In the past two years, the Environmental Protection Agency (EPA) has promulgated numerous final and proposed rules that will require retrofitting of power plants, increased fees for new construction and operation of units from diverse sectors of the economy, potential construction delays, revisions to state plans to implement federal requirements, and the adoption of Best Available Control Technology measures to address greenhouse gas emissions from diverse sources.
EPA’s own analysis indicates that some of these rules will have significant costs; other actions have not yet been analyzed. There has not, however, been an analysis of the cumulative impacts of these regulations on global competitiveness, cumulative change in energy and fuel prices, employment, or reliability of the electricity supply. Nor has there been an analysis of the cumulative impacts on consumers; small businesses; regional economies; state, local and tribal governments; specific labor markets; and agriculture.
Of course, every rule that emerges from EPA undergoes a rigorous cost-benefit analysis, totting up every penny of cost to industry (calculated by industry, for the most part, so you can imagine they don’t under-project), and comparing it with the dollar value of the benefits that would result. For a number of reasons, that process is deeply flawed and slanted against protective regulations. It ignores, for example, the value of benefits that can’t be readily monetized, with the net effect that benefits are commonly understated, while the costs to industry are often exaggerated.Full text
Two years ago this week, 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.
The coal ash issue is not "new" -- toxic chemicals from unlined coal ash pits have been leaching into the ground for a long time. But the Kingston disaster, and a new administration, brought attention back to the issue and its continuing danger. One-third of some 629 dump sites that hold ash mixed with water were not designed by a professional engineer, and 96 are at least 40 feet tall and 25 years old.
Just weeks after Kingston, in January, 2009, Lisa Jackson faced her confirmation hearing for EPA Administrator. Senators asked about coal ash, and Jackson pledged she would take on the issue. On October 16 of that year, EPA sent OMB a draft of a proposed rule to regulate coal ash waste. We suspected then, and know now, that the rule was a strong one. Finally, we were on track to fix this wrong.
But the train would be derailed. On that same October day, the Office of Information and Regulatory Affairs (OIRA) at OMB hosted two representatives from the electric power industry to discuss coal ash. Things soon got busy; by a month later, OIRA was hosting multiple meetings on the coal ash rule every week. The meetings finally slowed down in March 2010. There were 47 meetings, and most, though not all, were with industry representatives opposed to EPA's proposal.Full text
A few stories from the last week that I thought deserved noting: