One curse of being a two-term president is that in your last two years, you must endure a conversation about whether you’re still relevant. For Barack Obama, that conversation is about to go kick into high gear. The pundits will observe, correctly, that his legislative agenda has little chance of moving through the new Congress, although that’s been true since 2011, of course.
So what is the path to progress for Barack Obama in these last two years of his administration? By what means can he add to his legacy, one that includes monumental health care reform, saving the economy, salvaging the automobile industry, subjecting the financial sector to some much needed regulation, and more? And how can anything of use be accomplished with a Congress dead-set against cooperation?
Actually, it’s quite straightforward, and we’ve been urging it on him for a couple years now. The President needs to follow up on his oft-uttered commitment to use executive power to do the people’s business. He doesn’t need to strain the boundaries of his authority one bit. He simply needs to send the clear message to the various departments of government, particularly those engaged in regulation, to get moving. And he needs to make sure that his own White House Office of Information and Regulatory Affairs contributes to the effort.Full text
Today, brave workers at a Wayne Farms poultry slaughterhouse have a reason to celebrate a milestone in their struggle for justice. With help from lawyers at the Southern Poverty Law Center, they filed a complaint with OSHA in April. They blew the whistle on conditions that included dangerous work speeds that caused serious injuries, as well as denying subsequent medical treatment, and the firing of workers who reported their concerns.
The agency released some results from its inspection, proposing significant fines against Wayne Farms for the deplorable conditions the workers continue to face.
After ringing its hands for nigh on four years, EPA has at last coughed up a final coal ash rule. Of course, no one but the White House staff will know what it says until the White House releases it in absolutely final form. Nevertheless, the staff will now engage in the charade of hosting multiple appearances by various interest groups that want to tell the President’s people about those concerns without really knowing what they should be talking about.
EPA is due in court on December 19 to explain to a judge what rule it has written. We can only hope that it is not the pale alternative crafted by the White House and put out for comment. That pitiful compromise would perpetuate the status quo, with the states left to continue to do a bad job at overseeing these huge pits in the ground that will inevitably burst, spilling toxic sludge across the landscape.Full text
This week, CPR President Rena Steinzor and I joined with the Maryland Clean Agriculture Coalition to submit comments to the Maryland Department of the Environment (MDE) urging the state to strengthen the permit that regulates Maryland’s nearly 600 industrial animal farms. MDE is in the process of renewing the General Discharge Permit, a one-size-fits-all permit that covers Concentrated Animal Feeding Operations (CAFOs) and Maryland Animal Feeding Operations (MAFOs) within the state (collectively known as Animal Feeding Operations (AFOs)). These farms raise hundreds of millions of animals each year and produce vast quantities of waste, playing a significant role in the ongoing degradation of the Chesapeake Bay and waterways throughout the state.Full text
In an op-ed published in The Hill on Friday, CPR President Rena Steinzor makes the case that in appointing a successor to Attorney General Eric Holder, President Obama needs to find a prosecutor tough enough to go after corporate malfeasance with more than a series of comparatively weak deferred prosecution agreements.
Of course, prosecutors can’t send corporations to jail — they are inanimate paper entities. But forcing them to acknowledge that they broke criminal laws is more than a symbolic gesture, which is why corporate lawyers work so hard to avoid such outcomes. The stigma of such guilty pleas lasts, rightly spooking existing and would-be investors.
Holder’s record in this area is tainted by his embrace of the “too big to jail” argument that the collateral damage from going after even the most serious corporate malefactors is intolerable. She writes,
This egregious off-ramp was spawned by the distorted fable the Fortune 100 have spun to explain the demise of Arthur Andersen, which followed its gigantic client, Enron, out of business within months after the sham finances they had erected together hit the press. The fable attributes Andersen’s collapse to a criminal indictment lodged by Justice Department prosecutors. In truth, its clients had deserted the firm in droves when it was first implicated in the scandal, and the disclosure that employees had shredded tons of paper as soon as Enron was discredited hastened this exodus.
EPA’s proposed new rule for greenhouse gas emissions from power plants gets a lot of things right. For one thing, it recognizes that electric utilities can employ a variety of measures to reduce greenhouse gas emissions. They can switch to natural gas or even renewable energy sources. They can fund end-use efficiency improvements—such as energy efficient windows, better insulation, and light bulbs that burn brightly even while they conserve electricity. All of these techniques reduce power plant emissions. So, EPA is right to make them building blocks for its rule.Full text
Today, OSHA announced that it is seeking new ideas from stakeholders about preventing workplace injuries caused by exposure to harmful chemicals. The agency wants to identify new ways to develop Permissible Exposure Limits (PELs), the basic standards for reducing air contaminants.
CPR's Executive Director Matthew Shudtz responded to the development:
It’s great that Dr. Michaels is continuing to seek new ways to eliminate or manage chemical hazards in the workplace. OSHA has been relying on outdated standards for too long. But rulemaking is not the only way to address these hazards. OSHA needs to use the enforcement tools it has available, especially the General Duty Clause. With the General Duty Clause, OSHA can cite employers who are lagging behind industry standards for chemical exposure.
Last year, OSHA released new web-based tools to help employers voluntarily limit the exposure of workers to hazardous substances. In a blog Shudtz noted that the agency could use the General Duty Clause within the OSH Act to compel low-road employers to protect workers from harmful chemical exposure. According to the blog:
As OSHA freely admits, the Permissible Exposure Limits (PELs) found in current regulations are out-of-date and inadequately protective. Employers may expose workers to chemicals up to those limits without incurring fines for violating the standard, even though the exposures are patently dangerous. Most were adopted in the early 1970s and were based on scientific research from the 1940s through 1960s. In the late 1980s, the agency undertook an effort to set new exposure limits for hundreds of chemicals in one fell swoop, only to be thwarted by a court that wanted more detailed analyses of each individual chemical exposure limit. Since then, OSHA has initiated and finalized just one new PEL – as part of a comprehensive standard for hexavalent chromium exposure – but only after Public Citizen and the Oil, Chemical and Atomic Workers Union petitioned the agency to do so and fought a protracted legal battle to get the rulemaking started and completed. In the meantime, non-governmental organizations have continued to update their own occupational exposure limits (OELs) for chemicals found in the workplace, which many employers implement voluntarily because they know that OSHA’s standards don’t do enough to protect workers.
The broad recognition that workers face significant hazards even when chemical exposures are below OSHA’s PELs presents an interesting question about employers’ duty to protect their workers. Fortunately, Congress foresaw the potential for such a problem and included in the OSH Act a provision known as the General Duty Clause (GDC). Under the GDC, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
As interpreted by the Occupational Safety and Health Review Commission (OSHRC) and federal courts, OSHA must prove four elements to establish a GDC violation:
1. Employees are exposed to a hazard;
2. The hazard is recognized by the employer or the industry generally;
3. The exposure has caused or is likely to cause death or serious physical injury; and
4. There is a feasible means of abating the hazard.
Elements (1) and (3) are not generally significant hurdles when dealing with toxic chemicals. The difficult points for OSHA to prove are that a chemical hazard is “recognized” and that there are feasible means of abatement. But with the new annotated table of exposure limits, employers are on notice that exposures below OSHA’s PELs and above other organization’s OELs present hazards that are recognized by the occupational health community and the industry generally. And the new substitute-chemical toolbox may provide feasible means of abating those hazards.
GDC cases are not easy matters for OSHA’s enforcement staff or the agency’s lawyers, so we can’t expect to see a flood of new cases in the wake of today’s announcement. However, selective use of this enforcement theory could create a ripple effect that would ensure better protections for the many workers who are exposed to dangerous levels of toxins.
Ebola’s natural reservoirs are animals, if only because human hosts die to too quickly. Outbreaks tend to occur in locations where changes in landscapes have brought animals and humans into closer contact. Thus, there is considerable speculation about whether ecological factors might be related to the current outbreak. (See here). At this point, at least, we don’t really know. Still, it’s clear that outbreaks of diseases like ebola strengthen the case for forest conservation. Which is also, obviously good for the environment. But that’s not what I want to focus on here.Full text
Apparently undeterred by all the bad press it has received lately, the Small Business Administration’s (SBA) Office of Advocacy has cast its controversy-attracting lightning rod ever higher in the air by issuing a feeble comment letter attacking the Environmental Protection Agency’s (EPA) pending rulemaking to define the scope of the Clean Water Act (“Waters of the US rule”). The letter is just the latest evidence that the SBA Office of Advocacy has no interest in working to advance the unique interests of real small businesses—in accordance with its clear legal mandate—but instead is entirely focused on seeking to block those rules that are opposed by large business interests and their conservative allies.
In its recent scathing report, the Government Accountability Office (GAO) raised several disturbing questions about whether and to what extent the SBA Office of Advocacy is actually fulfilling its statutory mission of serving as a “voice for small businesses within the federal government.” Of immediate relevance here, one of the key issues identified in the report was that the SBA Office of Advocacy was never able to provide any evidence of small business input it received to inform its decision intervene in rules or the substance of its comments letter. In other words, the SBA Office of Advocacy could never prove that its interventions were every actually prompted by small business concerns. As described below, the SBA Office of Advocacy’s comment letter on the EPA’s Waters of the US rule only adds to these questions—and its provides additional impetus for needed reforms and increased congressional oversight to ensure that the agency is not wasting taxpayer money and helping large businesses to the direct detriment of the small firms they are supposed to be helping.
A Texas judge's award of attorney fees is a threat to all public interest groups, liberal or conservative.
A couple of weeks ago, a federal district judge in Texas awarded over $6 million in attorneys’ fees against the Sierra Club. Sierra Club had survived motions to dismiss and for summary judgment, only to lose at trial. The court awarded fees on the ground that the suit was frivolous. The combination of rulings — denying summary judgment but then calling a lawsuit frivolous — is virtually unheard of, at least in the absence of perjury by a witness or document tampering. It’s hard to account for this peculiar ruling unless the judge was just cranky due to the summer heat in Waco.Full text