There were many highlights in President Obama’s recent State of the Union address, but one passage in particular stuck out for us. In this passage, Obama laid out his clear vision of the positive role that government can and must play in our society—and sharing this vision with the American public will be essential for successfully repelling the oncoming Republican onslaught against regulatory safeguards. He cast his positive vision of government in the following terms:
But here’s the thing—those of us here tonight, we need to set our sights higher than just making sure government doesn’t halt the progress we’re making. We need to do more than just do no harm. Tonight, together, let’s do more to restore the link between hard work and growing opportunity for every American.
In other words, we as a society benefit when everyone has the opportunity to achieve his or her full potential. The government is uniquely positioned to ensure that everyone is afforded opportunity; and, when the government is permitted to function effectively, it can and will fulfill this task successfully. Individuals win. Society wins. And the government has a critical role to play in achieving these results.
Full textHow much is it worth to save the life of a grandfather with lung disease or to keep an asthmatic child out of the hospital? The ozone rule, which EPA proposes today after years of politically motivated delay and while staring down the barrel of a court order, responds to the urgent calls of a gold-standard panel of scientists, who have been pleading with the agency to lower the existing standard of 75 parts per billion to the lower end of a range between 60-70 ppb. The Obama Administration did not quite do that, instead suggesting a range of 65-70 ppb, disappointing public health experts, and leaving thousands of lives in danger. But at least it got off the dime regarding one of the most important public health problems caused by air pollution. Hopefully, it will push the numbers down after the comment period.
Because China has ignored this very problem, citizens in that country’s big cities wear face masks every day. That’s why this rule is so important.
It’s not surprising that polluting industries are responding with hysteria, ignoring the public health benefits in favor of their bottom line. It’s way past time for this chorus of polluting profiteers and their allies in Congress to stop acting like money spent to clean the air is money wasted. Just ask families of people who struggle to breathe freely.
Full textA few months back, President Obama visited several kids receiving treatment for asthma at the Children’s National Medical Center in Washington, DC. Afterwards, he reflected on the critical importance of environmental safeguards, such as those to limit ozone pollution, saying:
[E]very time America has set clear rules and better standards for our air, our water, and our children’s health—the warnings of the cynics have been wrong. They warned that doing something about the smog choking our cities, and acid rain poisoning our lakes, would kill business. It didn’t. Our air got cleaner, acid rain was cut dramatically, and our economy kept growing.
In just a short few weeks, Obama will have his first test of whether he’s prepared to follow through on those words, and frankly, to make good on his legal obligation to do so, when the Environmental Protection Agency (EPA) announces whether or not it will establish a more protective national standard to limit ozone air pollution. The agency is under a judicial order to complete its review of the current National Ambient Air Quality Standard (NAAQS) for ozone and to propose strengthening it, if necessary, by December 1. The Clean Air Act requires the EPA to set the ozone NAAQS at a level “requisite to protect the public health” with “an adequate margin of safety.” That’s a standard that requires the agency to only consider public health and forbids it from considering polluters’ clean-up costs — not an accident of drafting, by the way, but rather a clear reflection that Congress intended for the EPA to make sure the nation’s air was safe to breathe.
Full textApparently 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.
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Having thoroughly tarnished their own reputations as well as that of the Small Business Administration’s (SBA) Office of Advocacy, economists W. Mark Crain and Nicole V. Crain are now preparing to make the big leap from thoroughly discredited academics to straight up shills for corporate lobbyists working to undermine public protections. The National Association of Manufacturers (NAM), an industry trade group that vehemently opposes such policies as cleaning up air pollution and improving worker safety, yesterday announced that it will release a report tomorrow, prepared by the Crains, that purports to measure the “annual cost of federal regulations.” That’s essentially what the Crains have been claiming to do for the Office of Advocacy until now, so it’s good news that at least it won’t be taxpayer money that’s footing the bill for their slanted research this time.
Just to review the bidding, in 2010, the SBA Office of Advocacy rather infamously sponsored a similar report by the Crains. The key finding of the 2010 Crain and Crain report, which antiregulatory members of Congress and allied business groups and advocacy organizations have wasted little opportunity to cite, purported to find that the total costs of federal regulation in 2008 was $1.75 trillion.
Full textIn Utility Air Regulatory Group v. EPA, seven members of the Supreme Court upheld the most important feature of the EPA’s Prevention of Significant Deterioration (PSD) program: the ability to require the vast majority of new and modified sources to install the “Best Available Control Technology” for reducing greenhouse gases (GHGs). As a consequence, eighty-three percent of significant new and modified sources will continue to be subject to the BACT requirement for their GHG emissions. Although the Court reversed, by a five-to-four vote, EPA’s contention that greenhouse gas emissions alone could trigger the PSD program, that reversal will have little impact because it will eliminate PSD requirements for only about three percent of significant stationary GHG sources. Justice Scalia’s majority opinion had some choice words for EPA, but it remains to be seen whether those words spell trouble for newly emerging climate regulations.
Full textEarlier this week, the Supreme Court heard oral argument in EME Homer City Generation v. EPA. At issue in the case was the ability of EPA to regulate cross-state pollution, or pollution generated in some states that is carried over to others downwind. Eight “downwind” states, primarily in the Northeast, filed a brief in support of the Court’s review of a previous decision by the D.C. Circuit Court of Appeals, which struck down the rule EPA implemented to regulate cross-state pollution.
The rule stems from the “Good Neighbor” provisions of the Clean Air Act, which calls on EPA’s good judgment to address the issue of one state unfairly polluting another. More than 90% of ozone levels in Connecticut stem from out of state pollution sources, contributing to the soaring levels of asthma and respiratory illness in the area. In order to mitigate this kind of pollution from other states, the EPA devised a cost-based system to determine what kind of plan an upwind state must implement in order to reduce pollution when the state has inadequately created its own plan to limit its pollution in other states, also known as the transport rule. Upwind states, industry and labor groups argue that the federal government is inappropriately inserting itself into a decidedly state issue when the federal government does not have adequate information to assign pollution-reduction plans.
Most reports of the oral arguments interpret a favorable stance from the Justices towards the EPA’s cost and science-based approach to regulate what it describes itself as a “dense spaghetti-like matrix.” However, and as I’ve discussed in this space before, the procedural questions about whether the D.C. Circuit should have reviewed the transport rule in the first place, largely escaped the attention of the Justices even though the issue was briefed.
Full textOn this 20th anniversary of the regulatory review regime of Executive Order 12,866, the appropriate thing to do would be to take stock. Has centralized regulatory review, on balance, improved the quality of federal regulation or interfered with it? Is this now-extensive regulatory review process worth it, given its costs? Sadly, the opaque quality of the process precludes a definitive answer.
Readers familiar with regulatory review already know that Executive Order 12,866, issued by President Bill Clinton, significantly reaffirmed systematic, centralized White House review of agency rulemaking activity. That Order built on the structure established in President Ronald Reagan’s 1981 Executive Order 12,291, both strengthening and modifying it in important ways. And Reagan’s Executive Order in turn built substantially upon more tentative moves made by Presidents Nixon, Ford, and Carter. EO 12,866 effectively settled three areas of bipartisan consensus (at least among Presidents) around regulatory review. First, review would be centralized. Executive agencies were not just ordered to refrain from publishing draft rules prior to “clearance” from the OMB Office of Information and Regulatory Affairs, but conflicts between the regulating agency and OMB (or other agencies) were expressly to be resolved by the President or Vice-President. Second, presidential priorities would expressly guide agency rulemaking, whether or not the agency statutes referenced those concerns. EO 12,866 asked agencies to explain, for example, how each proposed rule was consistent with presidential priorities. And third, agencies would have to comply with detailed analytical requirements such as cost-benefit analysis, aimed in part at achieving greater policy consistency and in part at some notion of improving the quality of agency rules. Thus, regulatory review joined the President’s other authorities – including appointments, removal, and budgetary control –aimed at increasing the responsiveness of the administrative state.
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Yesterday, The Hill published an opinion piece by Center for Progressive Reform President Rena Steinzor entitled, "Regulatory backlog threatens health and the environment."
Opponents of regulation also seek to undermine the very legitimacy of agency rulemaking by fostering public hostility toward government and belittling life-saving regulation as “red tape.” What results is the gross politicization of the regulatory process, resulting in long delays and weaker rules, as measured in lives and health. For example, the cost of the recent eight-month delay of the EPA’s ozone rule is projected to be somewhere between 1,000 and 2,867 premature deaths.
The simple truth is that cries of "over-regulation" from industry and its allies in Congress are hooey. Having lost pitched battles in Congress over adoption of various environmental, health, and safety laws, they're simply re-litigating their case, hoping to undermine the rules that breathe life into laws they opposed in the first place. More broadly, they're trying to intimidate the administration from aggressively pursuing the only course that congressional gridlock leaves open to it to address climate change, air pollution, water pollution, unsafe working conditions, and more.
We can only hope the administration doesn't fall for it.
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:
Full textThe 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.