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
This post is based on an article I wrote with Anne Havemann entitled “Too Big to Obey: Why BP Should Be Debarred,” published in the William & Mary Environmental Law & Policy Review.
Attorney General Eric Holder and his lead prosecutor, Lanny Breuer, are deservedly running a victory lap in the immediate aftermath of their criminal settlement with BP. The amount of money paid to settle the charges, $4.5 billion—is considerably larger than anything paid by past bad actors, although it represents just a few months of profit for the company. In addition, the two top supervisors on duty at the rig when it exploded will be prosecuted for manslaughter, sending the message that line managers put their futures on the line when they worry more about sparing costs for the company than the safety of their workers. But even these tough remedies fall far short of the “nuclear option” that should be invoked in this case: the permanent debarment of BP from ever doing business with the U.S. government.
Despite a shocking history of chronic law violations stretching a couple decades in this country—including an explosion at its Texas City refinery in 2005 that killed 15 workers--BP remains the Pentagon’s largest supplier of jet and vehicle fuel, with government contracts valued at more than $2 billion. In theory, at least, the United States only does business with “responsible” companies and, as I’ll explain further in a moment, BP is the corporate embodiment of irresponsibility, even if we ignore the catastrophe that happened in the Gulf. Yet any suggestion that the company should be debarred by the Department of Defense (DOD)--the government’s biggest spender--is summarily dismissed by observers who seem convinced that debarring BP would leave the Pentagon with nobody to sell it fuel.
Some statutes, including the Clean Air and Clean Water Acts, provide for immediate suspension for government contractors found guilty of violating their provisions. Unfortunately, however, the suspension is only applicable to the facility where the violation took place. The drilling rig that exploded is obviously no longer in existence.Full text
Judging from President Obama’s first term, the job of White House “regulatory czar” could prove of out-sized importance these next four years, with the head of an office few know exists ending up with the power to trump the authority of Cabinet members throughout the government. Cass Sunstein, the former occupant of the position, was perhaps the most influential overseer of the regulatory process ever, and it's not hard to imagine that his replacement will be equally powerful. But I'd propose that the next Administrator of the Office of Information and Regulatory Affairs (OIRA) have a very different job description.
Sunstein made himself a strong ally of business, doing his best to put the President in a position where he could withstand attacks by his Republican opponent for being tuned out to the needs of the “job creators.” This strategy did not work particularly well. President Obama was subject to withering attacks from big business and its political allies, and won reelection in the end by explaining himself as a populist concerned about the middle class. For this reason, and because the recent crisis over compounding pharmacies reminds us how badly regulatory agencies need to be strengthened, I'd urge the President to appoint a czar who will work to make sure that regulation and its enforcement are as effective as they are efficient from an economic perspective. I hope, in other words, that the President listens to his own campaign rhetoric and picks someone who can lead OIRA to develop a reoriented regulatory mission, one based on a positive vision for protecting the public.
For three decades, OIRA Administrators have described their task as one of number-crunching and economics, making it sound as if they're just adding up regulations' projected costs and benefits and seeing which side of the equation wins because it is objectively bigger. But their unwritten, self-defined mission is quite different. They have seen their task as standing guard on federal agencies to make sure they don’t upset industries too much, serving as a court of last resort for big business, and sparing the President from political damages. This role has not served anyone particularly well – except for industry.
But there's no law that says this is how OIRA should function; it's a habit that has grown up over the years. President Obama's next OIRA Administrator needs to see outside that shortsighted lens. In his 2008 acceptance speech at the Democratic convention, President Obama said that government should “protect us from harm and provide every child a decent education; keep our water clean and our toys safe.” That's the mission that the next OIRA Administration needs to make his or her own.Full text