It’s been more than 30 years since the U.S. Supreme Court declared that water is an article of commerce and that Nebraska’s attempts to prevent the export of “its” groundwater to neighboring Colorado violated the dormant Commerce Clause.[1] The high Court did not return directly to the issue until last week’s ruling in Tarrant Regional Water District v. Herrmann.[2] [3]This time, a unanimous Court ruled against the would-be exporter—Texas—and its efforts to divert a portion of the Kiamichi River from a point within neighboring Oklahoma.

The Court struck a blow to one of Texas’ largest water districts, which supplies the exploding populations of the state’s north central region including Fort Worth, Arlington, and Mansfield.[4] The ruling thwarted Tarrant’s attempt to obtain a permit from the Oklahoma Water Resources Board to divert 310,000 acre-feet from the relatively clean Kiamichi River upstreamfrom where it flows into the salty Red River. This would have been enough water to supply the annual water needs of some 300,000 Texas families.[5]

Later in this space, we plan to discuss the many and varied failings of a proposal in the Senate to reform the Toxic Substances Control Act. Unfortunately, the proposal is the joint work product of conservative Sen. David Vitter (R-LA) and liberal Sen. Frank Lautenberg (D-NJ), who died two weeks ago and therefore won’t have the chance to fix the legislation that is so unworthy of his name.

But before we take on that misguided proposal, we wanted to pay tribute to the Senator’s larger legacy. Frank Lautenberg was a tireless advocate for progressive causes, who played a key role in many of the environmental and health battles of the last three decades. He was a relentless and effective advocate for the people of the “Garden” state, which in addition to its reputation for farming on lush land, also holds the tragic distinction of hosting more Superfund toxic waste sites than almost any other state.

New Jersey, once the third largest petrochemical producing state in the union, has a very large population in a small space. All of the elected and appointed officials who have risen to prominence there are highly sensitive to these issues and have frequently offered their leadership for the good of the nation as a whole. Indeed, it’s no accident that two former administrators of the EPA—Christie Todd Whitman, a Republican (and former governor), and Lisa Jackson, a Democrat, came from the ranks of the state’s government. Both worked closely with Sen. Lautenberg, who could always be depended upon to fight for more resources and better laws to address grievous public health hazards.

Over the course of roughly 28 years in the Senate (not counting a two-year gap when he temporarily retired), Lautenberg reshaped the nation’s approach to smoking, drunk driving, domestic violence, toxic waste cleanup, and community right-to-know. Legislation he introduced in the 1980s helped trigger the smoke-free revolution by prohibiting smoking on commercial airplane flights. The law marked a significant early defeat for the tobacco lobby, making tougher legislation at the federal, state and local level, possible. Lautenberg was also instrumental in toughening the country’s drunk-driving laws, establishing a nationwide .08 blood alcohol standard and a 21-year drinking age. He wrote and got passed legislation that prohibited perpetrators of domestic violence from owning guns.

On the environmental front, Lautenberg worked tirelessly with Sen. Bill Bradley and Reps. Jim Florio, Bob Roe, and Jim Howard to win reauthorization of the multi-billion Superfund program that harnessed the federal government’s power and resources to eliminate the worst threats posed by the thousands of dumpsites filled with toxic chemicals throughout New Jersey and the country. He was instrumental in winning passage of the Emergency Planning and Community Right-to-Know Act that was designed to prevent industrial accidents like the explosion at a Union Carbide pesticide plant in Bhopal, India that ultimately claimed 3,787 lives.

The 2013 Water Resources Development Act (WRDA), as adopted by the Senate on May 13, S.601, would authorize $12 billion in federal spending on flood protection, dam and levee projects, and port improvements.  A new version of WRDA is passed every few years, and it is the primary vehicle for authorizing U.S. Army Corps of Engineers’ water projects and for implementing changes with respect to the Corps’ water resource policies.

S.601 contains several notable provisions, not the least of which is the so-called “States’ Water Rights Act” Amendment.  This amendment would bar the Corps from charging a storage fee for “surplus water” drawn from Missouri River reservoirs.  For the purposes of Section 6 of the 1944 Flood Control Act, which governs Missouri River operations, “surplus water” is defined as water stored in a Corps of Engineers reservoir that is not required because the congressionally authorized need for the water never developed.  In the Dakotas, the water in question was originally intended for irrigation, but irrigated agriculture in this region did not develop to the extent anticipated in 1944.

In the midst of one of the most severe draughts seen by this region since the 1930’s, one has to wonder whether there could ever be such a thing as “surplus” water.  Last summer, crops withered in the field, and low water levels on the Missouri threatened to shut down commerce on the Mississippi River and to disrupt shipments worth billions of dollars.

What kind of sleight of hand might this be? 

Yesterday's confirmation hearing for Dr. Howard Shelanski—President Barack Obama’s nominee to serve as the next “Regulatory Czar,” or Administrator of the White House Office of Information and Regulatory Affairs (OIRA)—may have been the “most important hearing in Washington this week,” but it did not produce much in the way of bombshells or drama.  Rather, it was a relatively staid affair, which at times had a distinct “going through the motions” vibe.

On the positive side, the hearing generated some good discussion about the problems associated with OIRA’s role in the rulemaking process.  Several of the questions posed by Chairman Carper (D-DE) and Senator Levin (D-MI) were very thoughtful. Senator Levin described the excessive rule delays at OIRA as “chronic” and asked what the nominee would do to address them.  He also touched on the problems of extending OIRA review to independent regulatory agencies (as some recent legislative proposals from anti-regulatory members of Congress have sought to do).  Chairman Carper addressed the need to limit cost-benefit analysis for rules promulgated under statutes where such statutes prohibit this analysis (which happens to be most of them).

Shelanksi offered some thoughtful answers to these and other question.  He stated that, if confirmed, his top priority would be to ensure “timely review” of agency rules, as opposed to OIRA’s current pattern of routinely violating the 90-day limit that Executive Order 12866 places on such reviews.  Shelanski also repeatedly acknowledged the need to conduct OIRA review consistently with the statutes under which agency regulations are issued.  For example, during one exchange, Chairman Carper noted that for some statutory provisions—such as the provisions of the Clean Air Act under which the Environmental Protection Agency (EPA) sets National Ambient Air Quality Standards (NAAQS)—explicitly prohibit the use of cost-benefit analysis.   In response, Shelanski noted that OIRA review involves several elements in addition to cost-benefit analysis, and that its review of NAAQS would likely need to focus on those other elements.  Since OIRA has routinely ignored such statutory provisions, Shelanski's assertion that he intends to comply with the law is noteworthy.

But, there were also some concerning moments during the hearing.

The Obama Administration’s announcement that it will comply with a district court’s order that it make emergency contraceptives available to all women and girls without a prescription comes as a welcome development in a long-running administrative-law fiasco. But the Administration’s specific suggestions as to how it will set things right, set forth in letters sent yesterday to the district court and to the citizen petitioners who originally asked for nonprescription access to emergency contraceptives, are inadequate in several respects.

First, under the government’s approach, we will all have to wait for Teva Branded Pharmaceutical Products R&D, Inc. — the sponsor of the one-pill emergency contraceptive, Plan B One-Step — to submit a new application asking for full over-the-counter status for its product before anything can happen to implement the court’s ruling. The government’s letter to the court announcing its compliance with the court’s ruling, and its letter to the citizen petitioners announcing its granting of their petition, set forth no deadline within which Teva must submit a new application. For all we know, Teva is uninterested in submitting such an application. As the government revealed in the district court proceedings, 99 percent of Teva’s market is covered by the application the FDA approved in April of this year. Why should Teva want more? Perhaps it is satisfied with what it has. In any event, nothing in the government’s “acquiescence” requires any action at all from Teva, and thus the government’s actions are utterly dependent on the independent and unpredictable actions of a private entity. This alone should make the government’s proposed “compliance” with the court’s order unacceptable.

Second, in its letter to the court, the government says that the FDA has “invited” Teva to “promptly submit” a supplemental new drug application with proposed labeling that would permit Plan B One-Step to be sold without a prescription or other point-or-sale restrictions. But we don’t know exactly what the government’s letter to Teva says. A previous letter exchanged between the government and Teva, read aloud by the district court judge in a hearing on the government’s motion to stay his order, suggested that the FDA had asked Teva to submit only very limited studies in a new request for over-the-counter status for Plan B One-Step. The FDA’s new “invitation” to Teva could very well contain some such limitation. We don’t know; the government hasn’t made the letter public. It also hasn’t made the other letters exchanged between it and Teva public. Unless and until the letters are made public, we simply won’t know if any private deals have been struck between this public agency and this private company, and thus we will not know if the public interest is being adequately served.

Third, the government has not yet decided whether Teva will be granted marketing exclusivity for its product. The FDA had previously granted Teva three years of exclusivity based on its conclusion that the studies Teva submitted with its latest supplemental new drug application were “essential” to its approval of over-the-counter status for this drug for girls 15 and older. But the finding that these studies were “essential” itself conflicts with the district judge’s factual findings that Plan B One-Step was approvable for over-the-counter status without the new studies. The FDA has not directly challenged the district judge’s factual findings. Even so, the government’s letters to the district court and to the citizen petitioners indicate that the government continues to maintain that the latest studies on Plan B One-Step meaningfully distinguish this product from Plan B and its generic equivalents. Without a promise from the government that it will abandon its baseless assertion that the new Teva studies are “essential” in proving that Plan B One-Step is safe and effective for women and girls of all ages without a prescription, it appears that the government will continue to give legal effect to the very factual premises that the district court found arbitrary, capricious, unreasonable, and held in bad faith. This would not be compliance with the court’s order; it would be continuing defiance of it.

Why does the White House take so long to review rules from the regulatory agencies?  As I have documented elsewhere, many rules have been stuck at the White House’s Office of Information and Regulatory Affairs (OIRA) for years.  Some of these remain there to this day.  What is the White House doing for the months and years that rules are stuck there?

One rule that just escaped from the clutches of regulatory review might provide a clue.  Just yesterday, EPA posted documents generated as a result of White House review of its rule on formaldehyde emissions from wood products.  These documents show at least one possible answer to the question of why review takes so long: perhaps it takes a very long time to make the benefits of regulation disappear!  This, at least, appears to be a primary consequence of the more-than-year-long tenure of the formaldehyde rule at the White House’s OIRA.

EPA’s rule on formaldehyde emissions went to OIRA with an estimate of annual benefits that ranged from $91 million at the low end to $278 million at the high end.  The rule left OIRA, however, with an estimate of annual benefits that ranged from $9 million at the low end to $48 million at the high end.  (To see a chart showing this change, go here: www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2012-0018-0495 and click on document entitled “2013-05-20_Formaldehyde-Implementation_NPRM_EO12866-Documentation_3-Redlined-Draft EA-A4-table.”)  The low-end estimate of benefits, in other words, decreased more than ten-fold as a consequence of OIRA’s review, while the high-end estimate decreased more than five-fold.  What happened?  

The confirmation hearing for Howard Shelanski, President Obama’s pick to serve as the Administrator of the White House Office of Information and Regulatory Affairs (OIRA) is set to take place Wednesday before the Senate Homeland Security and Government Affairs Committee.  If confirmed, Shelanski would become the Administration’s new “Regulatory Czar,” a description that indicates the significant influence OIRA’s administrator has concerning what agency rules look like and, indeed, whether those rules are issued at all.

Shelanski’s confirmation hearing comes at a crucial juncture in the Obama presidency. Progress on many important rules has been halted, including the EPA’ rule to limit greenhouse gas emissions from future power plants. Of the 139 reviews currently pending at OIRA, 71 are beyond the 90-day limit set by Executive Order 12866. A number of rules have been under review for a year or even two years.  If the President is to live up to his promise in his first post-election State of the Union address to take decisive action on pressing issues such as climate change, OIRA will have to change its tune.  We will be listening during the hearing to see whether Shelanski is prepared to finish up regulations that are necessary to protect the public and the environment, rather than continuing the tortoise-like review process that has characterized the President’s first term.  The answers to the following questions will provide the answer: 

Will Shelanski ensure the quick completion of reviews for rules that have been stuck at OIRA for well beyond the 90-day limit in Executive Order 12866? Senators should ask about the many rules that are pending at OIRA, such as the EPA’s Chemicals of Concern rule (stuck since May, 2010); the Department of Transportation’s Requirements for the Transportation Of Lithium Batteries (since October, 2010); the Occupational Safety and Health Administration’s (OSHA) Silica rule (since February, 2011), OSHA’s Injury and Illness Recording Requirements (since November, 2011); the National Highway Traffic Safety Administration’s Rearview Camera rule (since November, 2011 despite a legislative deadline of February, 2011); and the Department of Energy’s Federal Building Standards rule (since December, 2011).

Three years later, it was time for a new episode.  Back in 2010, Congress listened to some climate-denial rants, counted votes, and decided to do absolutely nothing about climate change; this year on Capitol Hill, the magic continues.

Also in 2010, the Obama administration released an estimate of “the social cost of carbon”` (SCC) – that is, the value of the damages done by emission of one more ton of carbon dioxide. Calculated by an anonymous task force that held no public hearings and had no office, website, or named participants, the SCC was released without fanfare as, literally, Appendix 15A to a Department of Energy regulation on energy efficiency standards for small motors.

This year, the Obama administration updated the SCC calculation. The update was done by an anonymous task force that held no public hearings, and had no office, website, or named participants. It first appeared as – yes! – Appendix 16A to a Department of Energy regulation on energy efficiency standards for microwave ovens.

Something has to change in a sequel (unless it’s in Congress); this year’s SCC number is bigger. For a ton of CO₂ emitted this year, the estimated damages were bumped up from $25 in the 2010 calculation to about $40 in the revised version (all in today’s dollars). Since the SCC is used in the administration’s cost-benefit evaluations of new regulations, a bigger number means stronger arguments for energy efficiency and conservation standards. That’s the good news.

Late Tuesday afternoon, Senators Sheldon Whitehouse (D-RI), Tom Harkin (D-IA), Ben Cardin (D-MD), and Richard Blumenthal (D-CT) and U.S. Representatives Henry A. Waxman (D-CA) and Ed Markey (D-MA) sent a letter to White House Office of Management and Budget Director Sylvia Burwell urging her to take "prompt action" to implement rules and regulations held up at the Office of Information and Regulatory Affairs (OIRA). The letter notes that under Executive Order 12866, OIRA reviews of agency draft rules must be completed within 90 days, and that 14 of the 20 EPA rules currently undergoing OIRA review have been languishing for more than 90 days, 13 of them for more than a year. 

In a statement this morning, CPR's Robert Verchick, a former EPA official, applauded the Members of Congress for taking on the issue. He said:

Congressional deadlock is often cited as the primary reason for government inaction, but as these key Members of Congress note in their letter, the President's own White House staff is delaying rules that could improve the quality of life for millions of Americans with the stroke of a pen.

EPA's proposed "Chemicals of Concern List rule" has been languishing at OIRA for more than three years, that for a proposal which would provide for nothing more than the simple disclosure of such potentially harmful chemicals, as phthalates, PBDEs, and BPA. Consumers and taxpayers deserve to know which cancer-causing and endocrine-disrupting chemicals are in the products they buy and use. But the President's OIRA is sitting on the rule. Action on this and the other rules bottled up at OIRA is long overdue. The Senators' and Representatives' letter reflects an appropriate sense of urgency.

Verchick was the Deputy Associate Administrator for Policy at the EPA during the first Obama Administration.

CPR Member Scholars have published extensively on the problems at OIRA. Read more on our Eye on OIRA page.

In the old television series, "Cheers," barfly and braggart Cliff Clavin was a guy who was forever "talking through his hat," offering up an endless supply of ridiculous factoids and explanations. Cliff made for good television, but the same cannot be said for the Senate Republicans who seem to be borrowing his approach. That's what's at work with the Republican effort to block President Obama’s nomination of three distinguished lawyers to fill longstanding vacancies on the D.C. Circuit Court of Appeals by eliminating the open positions. The GOP claims the appointments are unnecessary because the circuit doesn’t need the judges – describing the nominations as “court packing.”

What utter nonsense! Even Cliff Clavin would blush at the argument! It's so absurd that I can't imagine even the Republicans believe it. The obvious reason that the GOP opposes the nominations is that filling these long-vacant seats will mean that more judges on the court will have been appointed by Democratic presidents than Republican ones.   That, of course, is what happens when we have elections. In that sense, the opposition is more than nonsensical; it is an effort repeal the system established by the Constitution for the appointment of judges.

Let's dispense with the merits — to use the term loosely — of the GOP's argument. Statistics from the Federal Judicial Center indicate that there were an average of 1,152 cases pending (not yet decided) in the D.C. Circuit during the eight years of the Bush administration. The same average for the four years of the Obama administration is 1,362 pending cases. (A comparison of the last four years of the Bush administration and the first four of the Obama administration reveals a similar result: an average of 87 fewer pending cases in the Bush administration.)   Moreover, because no nominations have been confirmed to the court since 2006 (until last month), the number of pending cases per judge has grown from 119 in 2005 to 188 today. By the way, in defense of history, the phrase “court packing” refers to an effort during the Roosevelt administration to add more judges to the Supreme Court – not to eliminate existing seats, as the Republicans would like to do here. The Republicans were happy enough to fill five existing vacancies on the D.C. Circuit when George W. Bush was President , even though, as noted, the workload was about the same or lighter than it is now.

Recent Posts:

• The Lesson of Tarrant Regional Water District v. Herrmann: Water Conservation, not Water Commerce
• Frank Lautenberg: New Jersey and the Senate Lose a Leader
• CPR Scholar Sandi Zellmer: Senate Passes Wrong-Headed “States’ Water Rights Act” WRDA Amendment to Facilitate N.D. Fracking
• Some Observations from the Howard Shelanski Confirmation Hearing
• The Obama Administration’s Plan B for Plan B: Compliance, or Defiance?

Topics:

• Clean Science
• Climate Change
• Corporate Accountability and Tort Reform
• CPRblog
• Environmental Protection
• Excessive Secrecy in Government
• Food and Drug Safety
• Occupational Safety and Health Issues
• Publications and Books
• Regulatory Policy
• Testimony and Letters to Agencies

Authors:

• Frank Ackerman
• David Adelman
• Robert Adler
• William Andreen
• Mary Angelo
• John Applegate
• Rebecca Bratspies
• William Buzbee
• Jake Caldwell
• Alejandro Camacho
• Robin Kundis Craig
• Carl Cranor
• Holly Doremus
• David Driesen
• John Echeverria
• Kirsten Engel
• Lee Ewing
• Daniel Farber
• Joe Feller
• Adam Finkel
• Robert Fischman
• Victor Flatt
• Alyson Flournoy
• Matt Freeman
• Bill Funk
• Margaret Giblin
• Robert Glicksman
• Dale Goble
• James Goodwin
• Elizabeth Grossman
• Lisa Heinzerling
• Lisa Heinzerling
• Yee Huang
• David Hunter
• Peter Jenkins
• Shana Jones
• Bradley Karkkainen
• Alice Kaswan
• Alexandra Klass
• Christine Klein
• John Knox
• Douglas Kysar
• Patrick MacRoy
• Lesley McAllister
• Martha McCluskey
• Thomas McGarity
• Emily Hammond Meazell
• Nina Mendelson
• Joel Mintz
• Celeste Monforton
• Richard Murphy
• Catherine O'Neill
• Dave Owen
• Michael Patoka
• Lena Pons
• Wayland Radin
• Dan Rohlf
• Daniel Rosenberg
• Noah Sachs
• Christopher Schroeder
• Sidney Shapiro
• Isaac Shapiro
• Matt Shudtz
• Aimee Simpson
• Amy Sinden
• Ben Somberg
• Rena Steinzor
• Dan Tarlock
• Joseph Tomain
• Robert Verchick
• Nicholas Vidargas
• David Vladeck
• Wendy Wagner
• Chris Wold
• Sandra Zellmer

Blogs we read:

• ACSBlog
• AlterNet
• Center for Environmental Health
• Climate Progress
• Coalition for Sensible Safeguards
• Consumer Law and Policy Blog
• DeSmogBlog
• Enviroblog
• Environmental Health News
• EPA's Greenversations
• The Fine Print
• Flatt Out Environmental
• GreenLaw
• Grist
• The Intersection
• HuffPost's Watchdog
• Legal Planet
• The Pop Tort
• Public Goods
• Real Climate Economics
• RegBlog
• Science Progress
• ScienceBlogs
• Sierra Club
• Sustainablog
• Switchboard
• The Pump Handle
• Think Progress
• TreeHugger
• unEARTHED
• US PIRG Consumer Blog
• Watchdog Blog
• Wilderness Blog
• Wildlife Promise
• Yale Environment 360