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.Full text
As the scandal du jour over the pure lug-headedness of some IRS staffers reminds us, any screw-up, anywhere in the government, will make its way to the White House press briefing room in about a nanosecond of Internet real time. Suspicion is deeply bred into the press corps, and appropriately so. For that reason, the 2,000 or so people who directly serve on the President's White House staff, but who remain faceless to the rest of us, insist on maintaining control over anything that could embarrass him, including dozens of health, worker safety, and environmental rules that might engender so much as a whiff of controversy or attract a smidgen of opposition from powerful special interests.
In this vein, we look forward to the confirmation hearings of one of the few White House politicos actually subject to the Senate's advice and consent—Howard Shelanski, President Obama’s nominee for the powerful position of “regulatory czar,” a.k.a. Administrator of the Office of Information and Regulatory Affairs (OIRA), located within the White House Office of Management and Budget (OMB). Dr. Shelanski, a lawyer (Berkeley ’92) and Ph.D. economist (Berkeley ’93), was most recently the chief number-cruncher at the Federal Trade Commission (FTC), giving rise to speculation that he will spearhead an effort to bring independent agencies like the Securities and Exchange Commission (SEC) under Executive Order 12,866, which is read to require elaborate cost-benefit analyses before the issuance of any rule or guidance that upsets powerful industries.
Given the high dudgeon of investment bankers these days—the New York Times recently reported their determination to sabotage new derivatives (!!) rules under consideration at the Commodities Futures Trading Commission—bringing the independent agencies to heel is undoubtedly a priority for the waves of lobbyists who swarm the White House staff each morning. But we hope Shelanski will be called to account for a more appropriate agenda.
Notwithstanding the loud and endless gnashing of teeth by conservative groups, the truth is that the total number of significant, substantive rules issued in 2012 (848) was substantially lower than the number issued in the last year of the George W. Bush Administration (1,063), and 2013 looks to be shaping up as the lowest (at the current rate, a projected total of 579) since 1997. Some illuminating tables and a list of delayed rules prepared by regulatory analyst Curtis Copeland, a respected retiree from the Congressional Research Service who spoke at a recent CPR event, bear this out. In fact, counting all the little stuff, including routine approvals by the federal government of programs implemented by the states, at the rate it is going, the Obama Administration will produce this year considerably fewer than half the “rules” (1,360) that the George W. Bush Administration did in its last year in office (3,085).Full text
Today's move by Senate Republicans to boycott a committee confirmation vote on Gina McCarthy to lead the EPA is just another in a series of shameless tactics aimed at hampering the Environmental Protection Agency and preventing it from doing the people's business. The list includes endless filibusters; sequester cuts that make it harder to enforce existing laws; a host of attacks on specific environmental regulations under the Clean Air Act, Clean Water Act and other statutes addressing critical environmental issues; and wholesale assaults on the regulatory process. To that undistinguished list, we can now add "taking their marbles and going home," rather than voting on a presidential nominee to lead the EPA.Full text
See the UPDATE at the bottom of the page.
Last Thursday, President Obama named Howard Shelanski as his new nominee for Administrator of the Office of Information and Regulatory Affairs (OIRA). As of that evening, Shelanski was listed on the website of the industry-funded, fiercely anti-regulatory Mercatus Center as an "expert" in its Technology Policy Program. OIRA has long operated as a regulatory chokepoint, stalling and weakening health and environmental safeguards at the behest of industry groups, and as I've written, the protection of the public will require the next Administrator to work hard to transform OIRA's role. Although much research remains to be done on Shelanski's record, his association with Mercatus raised serious concerns about whether he could be the person to bring that fundamental change to OIRA. (In fact, it brought back memories of George W. Bush, who culled his second OIRA Administrator, Susan Dudley, from Mercatus's ranks.)
I pointed the Mercatus connection out in a blog the morning after his nomination. By Friday afternoon, without any explanation, Shelanski's name had been quietly removed from Mercatus' list of experts. (Here's Google's cached version (in pdf form) from April 11, 2013 showing Shelanski's name; here's the same page still available on the web as of this morning; and here's the Shelanski-less version of the page as it looks today on the Mercatus website.)
So, questions arise: Did Mercatus take his name off its list of scholars at Shelanski's request, or on their own initiative? Was Mercatus somehow mistaken about who its own scholars were? The answers to those questions, if we ever get them, will give us a better idea whether Mercatus somehow over-reached when it listed him as one of their scholars, or—what's more concerning—whether there was some relationship that Shelanski, Mercatus, or both now would rather hide from view.
UPDATE: A few hours after this was posted, Benjamin Goad of The Hill put these questions to Mercatus spokesperson Leigh Harrington, who said that Shelanski's name was incorrectly added to the Mercatus website's list of Technology Experts. According to Goad's article, Harrington maintained that (quoting the article) "Shelanski should have been listed among the ranks of speakers who have participated in Mercatus programs, but was 'incorrectly categorized' as an expert. 'We fixed the error once it was pointed out to us,' Harrington said."Full text
A few months ago, I urged the Obama Administration to view the nomination of a second-term Administrator of the Office of Information and Regulatory Affairs (OIRA) as an opportunity to fundamentally change the role that the office plays in the regulatory system. Dozens of important rules got stuck at OIRA in the year before the presidential elections and are still languishing. House Republicans continue their blistering and unsubstantiated attacks on the agencies, doing everything they can to cut their budgets beyond the bone, while the Obama Administration does nothing to rebut these tirades. And most agencies at the federal, state, and local levels are on life support, unable to prevent, much less mitigate a series of deadly fiascos. As just two very recent examples: consider the explosion at a West Texas fertilizer factory that claimed 15 lives several days ago, catching emergency response crews at their most vulnerable, and yesterday’s front page story in the Washington Post about a rule that would gravely endanger worker and consumer safety at poultry processing plants. The job of the next “regulatory czar” won’t be easy unless he conceives of it as a continuation of the first Obama term’s “rule busting” that placates dangerous industries at the expense of public health.
Late yesterday, President Obama announced the nomination of Howard Shelanski, a current Federal Trade Commission official (FTC), to be the agent of change that OIRA so desperately needs. We'll certainly take a close look at his record in the days ahead, but one thing is certain: The Senate will need to conduct a thorough and searching confirmation process, one aimed at ensuring that OIRA stops being the place where badly needed safeguards for health, safety and the environment go to die.
Dr. Shelanski has spent his career working in the arenas of antitrust and telecommunications, two specialties far removed from the core of OIRA oversight that is most controversial. Hopefully, this background means he will approach health and safety issues with an open mind. On the other hand, Dr. Shelanski is also listed as an “expert” in the Mercatus Center’s Technology Policy Program. (His Mercatus Center bio is here.) The Mercatus Center is an industry-funded think tank and is well known for strongly advocating for anti-regulatory policies, indicating that in his new position, he must work especially hard to consider divergent views.*
Dr. Shelanski’s nomination will come before the Senate Committee on Homeland Security and Government Affairs. The members of that committee must take that opportunity to ask him tough questions. For example, as OIRA Administrator, will Dr. Shelanski see it as job to advance the public interest or to appease regulated industries? Who does Dr. Shelanski think should be in charge of the substance of EPA’s regulatory decision-making: the EPA Administrator or the OIRA Administrator? When it comes to agency decision-making, will OIRA continue to insist on substituting biased cost-benefit analyses for the impact analyses specified in statute? Will Dr. Shelanski abide by the transparency requirements imposed on OIRA by Executive Order 12866? Will he encourage agencies to follow the Order’s transparency requirements as well? Finally, will Dr. Shelanski respect the clear 90-day time limits that Executive Order 12866 places on regulatory review?
We look forward to meeting Dr. Shelanski and doing our best to persuade him that a fundamental course correction at OIRA is vital. Without one, there will be more grim funeral services honoring lives lost unnecessarily in industrial catastrophes that escape a badly shredded safety net.Full text
On Friday, the White House Office of Information and Regulatory Affairs (OIRA) returned a proposed rule on air pollution standards for oil refineries to EPA, insisting that the agency complete “additional analysis” before moving forward. EPA’s efforts to reduce hazardous pollutants from these facilities will be delayed for months or likely years. And that additional analysis? OIRA won’t even say what it’s for. “Trust us” is not the most reassuring government transparency.
EPA was proposing to revise the emissions standards for hazardous air pollutants from oil refineries, incorporating the results of a “risk and technology review,” which is used to determine whether additional reductions are warranted in light of the remaining risks to human health that the facilities present and the technology now available to lower their harmful emissions. The proposal would also amend new source performance standards (NSPS) for a number of other pollutants from these facilities. The various pollutants emitted from the nation’s 150 oil refineries can cause cancer, severe respiratory problems, and a range of cardiovascular, skin, blood, and neurological disorders. Because EPA’s proposal has been returned to the agency instead of released to the public, we do not know by how much EPA expected to reduce emissions of these harmful pollutants or how large the resulting health benefits would be.
The current emissions standards for hazardous air pollutants from oil refineries were issued in 1995 and 2002, each one covering different sources of pollution. Under the Clean Air Act, EPA is required to review these standards within eight years of setting them, so this rulemaking is actually many years overdue. The agency has been under a court-approved settlement to propose this rule by December 15, 2011, and it is more than a year past that deadline as well. After conducting an extensive survey of all the refineries in the nation, EPA submitted its proposal to OIRA on September 4, 2012, already nine months late but also during the election season. OIRA then held onto it for more than six months—much longer than the 90 days (with one 30-day extension) permitted by Executive Order 12866—only to tell the agency on Friday that it needs to provide even more information.Full text
It has now been nearly seven months since Cass Sunstein left his job as Administrator of the White House Office of Information and Regulatory Affairs (OIRA). Much has happened in that time, most significantly an election that returned President Obama to the White House, but also a growing recognition that whatever second-term accomplishments the President is able to register on climate change and a number of other issues are likely to be brought about through regulation, not legislation. That's precisely why it's important to fill Sunstein's job with someone who'll help regulatory agencies accomplish their important work.
Unfortunately, the President has yet to nominate a successor. As a result, Sunstein's temporary replacement, Boris Bershteyn, will reach a milestone in just a few days: Under the law, his time as Acting Administrator is up. It would shock no one if the White House did nothing more than strip him of the "Acting Administrator" designation. That's what it did with Jeffrey Zients, who timed out of the role of Acting Administrator of the Office of Management and Budget, and is now described as the person who "leads" OMB. (This morning, Sylvia Mathews Burwell was nominated to be OMB Director, along with Gina McCarthy for EPA Administrator and Ernest Moniz for Energy Secretary).
But that's a lousy way to run OIRA, particularly now, when it is sitting on a bunch of crucial safeguards and is in desperate need of new direction.
From all outward appearances, little at OIRA has changed under Bershteyn’s nearly seven-month leadership, and that’s bad news for the public. As I write, more than 60 proposed or final rules from agencies have been stuck at OIRA for longer than the 120 days permitted under Executive Order 12866, which allows for a 90-day review with a possible 30-day extension. Among the stalled rules:
This post was written by CPR President Rena Steinzor and Media Manager Ben Somberg.
The White House issued a fact sheet last Friday presenting “Examples of How the Sequester Would Impact Middle Class Families, Jobs and Economic Security.” The consequences of the impending budget cuts from the “sequester” are not some abstract problem; they’re serious dangers, like this one:
The Food and Drug Administration (FDA) could conduct 2,100 fewer inspections at domestic and foreign facilities that manufacture food products while USDA’s Food Safety and Inspection Service (FSIS) may have to furlough all employees for approximately two weeks. These reductions could increase the number and severity of safety incidents, and the public could suffer more foodborne illness, such as the recent salmonella in peanut butter outbreak and the E. coli illnesses linked to organic spinach, as well as cost the food and agriculture sector millions of dollars in lost production volume.
We applaud the White House for explaining to the public the importance of our food safety system.
But here’s the irony: the Administration is simultaneously moving forward with a separate plan that would weaken the food inspection system in the area of poultry processing. The USDA issued a proposed rule in January of last year that will take many federal food inspectors off the poultry lines, replacing their work in part with less-trained company inspectors, and the agency is on the verge of sending the final version to the White House for approval.Full text
After the last of the applause lines has been delivered, and while the crowd that gathered for his historic second inauguration is still filing out of town, President Obama will once again sit at his desk in the Oval Office and begin the tough policy work that will define his second term in office and shape the legacy he will leave behind.
Among the many challenges he'll face over the next four years will be an urgent agenda of addressing critical threats to public health, safety, and the environment that the Administration let languish during the first term. But good luck to him if he decides to attack the problems with legislation. The election made the numbers in both chambers of Congress somewhat more favorable to the President's cause. But it'd take an earth-shattering event or at least another election to get protective legislation out of the House of Representatives, which vacillates between being sullen and defiant and will undoubtedly return to its anti-regulatory drum-beating as soon as the fiscal “crisis” is over.
So what's a President to do? Use every bit of executive power he can marshal, in this case, by directing the regulatory agencies to move with dispatch to regulate and enforce in a number of vital areas. In Protecting People and the Environment by the Stroke of a Presidential Pen: Seven New Executive Orders for President Obama’s Second Term, released today, my colleagues and I at the Center for Progressive Reform explain how the President can take the first vital step by making full use of his authority to manage executive agencies—including the Environmental Protection Agency, the Food and Drug Administration and the Occupational Safety and Health Administration—by issuing a series of Executive Orders.
The Orders recommended in the CPR Issue Alert would address several pressing health, safety, and environmental challenges:
For a potentially earth-shattering move against one of the most notorious corporate environmental scofflaws in history, the Environmental Protection Agency (EPA) sure hid its light under a bushel this morning. The agency’s scant three-paragraph press release announced simply: “BP Temporarily Suspended from New Contracts with the Federal Government,” adding that “EPA is taking this action due to BP’s lack of business integrity as demonstrated by the company’s conduct with regard to the Deepwater Horizon blowout, oil spill and response.” As the headline suggests, the temporary suspension applies to new, but not existing, contracts with the government.
Don’t get me wrong, EPA’s move was in its own way a profile in courage for an agency that too often walks around with a target on its back, taking unwarranted hits from both its known foes—House Republicans—and from people who should be on its side—White House staff, and occasionally from other agencies and departments—like the Pentagon, or the Small Business Administration's Office of Advocacy. The question is whether the little release was an exercise in mere bravado or whether it will deliver real results.
As reporters hustled to interpret the cryptic release, the Interior Department confirmed that BP would be barred from winning any new federal oil leases. Unfortunately, BP just finished winning a slew of new leases in June, making it the largest leaseholder in the Gulf. The new leases are located in the same region of the Gulf as the Macondo well, the one that exploded in April 2010, killing 11 destroying the $350 million Deepwater Horizon drilling rig, fouling the Gulf of Mexico and hobbling the regional economy of the Gulf Coast. As the rig’s name suggests, oil lies deep below the surface out there, representing plenty of hazards to be navigated by a company that, according to EPA's careful review of ample evidence, lacks integrity.Full text