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US Chamber of Commerce: More of the Same

Recently, the U.S. Chamber of Commerce released a report entitled Energy Works for US: Solutions for America’s Energy Future.  The data and references in the report are largely accurate, as far as they go, and the report promotes energy efficiency, which is a welcome step.  Ultimately, though, the report is unreliable because it has too narrow a vision of the energy future.  It inaccurately characterizes government regulation and neglects the environmental consequences surrounding the production, use, consumption, and disposal of our energy resources.  Instead, Energy Works is more of a political polemic rather than a useful white paper.  While it may well serve the Chamber’s political agenda, Energy Works for US fails to recognize the complexities and challenges necessary to fashion our energy future.

Our energy future is as important a policy matter as any that now confronts the United States. Any discussion of our energy future, therefore, must be conducted with openness and candor and must recognize the complexities and challenges of fashioning that future. Unfortunately, Energy Works fails on each these counts.  

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The Obama legacy: will West Virginia toxic spill join the queue of episodes showing that “government”—and whatever it means to the President—broke on his watch?

As people across the country and around the world watched the tableau of 300,000 West Virginians give up their drinking, cooking and bath water for days on end because an untested toxic chemical was spilled by a company that was co-founded by a twice-convicted felon, the ever-present John Boehner (R-Ohio) had pungent advice for President Barack Obama.  “We have enough regulations on the books.  And what the administration ought to be doing is actually doing their jobs.  Why wasn't this plant inspected since 1991?” he declared.   “I am entirely confident that there are ample regulations already on the books to protect the health and safety of the American people.  Someone ought to be held accountable here.”

Consistency, of course, is the hobgoblin of small minds and, unfortunately, no member of the media thought to ask Speaker Boehner whether sequestration and other merciless budget cuts might have something to do with the lack of inspections.  Or, to put the issue more bluntly: Why won’t anyone in the press ask the Speaker and his ilk whether we get the government we pay for and whether, these days, we aren’t paying—or getting—enough?  But fair is fair: John Boehner isn’t the president, and this latest catastrophe happened on President Obama’s watch, along with a string of other, disturbingly similar episodes. 

 
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A Victory for American Coal Miners; A Small Measure of Justice for the Victims of the Upper Big Branch Mine Disaster

Yesterday, the Mine Safety and Health Administration (MSHA) finalized the long overdue Pattern of Violations rule, a measure that will enhance the agency’s enforcement authority by making it easier for the agency to hold scofflaw mines strictly accountable for repeatedly and needlessly putting their workers at risk of chronic illness, severe injury, or even death.  The deterrent effect of this enhanced enforcement authority will discourage delinquent mine operators from cutting corners on health and safety, a development that will produce significant benefits for America’s miners.  MSHA estimates (see page 6) that the rule will prevent nearly 1,800 non-fatal injuries over the next 10 years, in addition to reducing instances of illnesses and fatalities.

The Pattern of Violations rule was one of the high priority regulatory actions that MSHA announced in response to 2010’s Upper Big Branch Mine disaster, in which 29 miners were killed in a massive mine explosion.  Several investigations of the incident revealed that the explosion was precipitated by a deadly combination of hazardous conditions including improperly maintained mining equipment, inadequate ventilation, and insufficient rock dusting; the Upper Big Branch Mine had had been repeatedly cited for many of these kinds of hazards in the months prior to the disaster.  Between 2005 and the time of the explosion, MSHA had cited the Upper Big Branch Mine for 1,342 violations.  In 2009 alone, the agency cited the mine for 515 different safety violations, around 200 of which MSHA deemed to be “significant and substantial,” or violations that could reasonably be expected to lead to a serious injury or illness.  The Upper Big Branch Mine’s operator—the now defunct Massey Energy Company—also had a long history of operating mines with similar health and safety violations.

Under the existing rules, delinquent mines that in practice had a long pattern of violations could avoid official “pattern of violations” status—which would enable MSHA to order the mine to withdraw workers from any part of the operation that it subsequently finds to have a significant and substantial violation—by appealing the citations.  The Massey Energy Company had resorted to that tactic with Upper Big Branch, and MSHA had also made an error that stopped the company from moving a step closer to receiving a pattern of violation notification.  Had a proper Pattern of Violations rule been in place, and had MSHA properly implemented it, the Upper Big Branch Mine disaster might have been prevented.

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BP Spill: Perp Walk for Underling Shouldn't Satisfy Anyone

With considerable media flourish, the Department of Justice (DOJ) announced Tuesday the first and so far only criminal charges related to the BP Deepwater Horizon catastrophe that killed 11 workers, and did profound violence to the Gulf of Mexico and the local economies dependent up on it. One Kurt Mix, 50, an engineer involved in designing the failed “top kill” remedy, was indicted for obstruction of justice. More specifically, he's accused of deleting text messages from his phone that he knew were to be collected as evidence in the case.. 

Prosecutors made Mix do a perp walk for reporters, with the New York Times reporting that he “surrendered” in Houston, “wearing a light purple shirt and pair of khakis without a belt.”  Several legal experts, including Professors  Richard Lazarus (former executive director of the Oil Spill Commission) and David Uhlmann (former chief DOJ environmental crimes prosecutor)  predicted that the arrest of Mix would help prosecutors build cases against those further up the food chain.  With all due respect to these hopeful—really wishful—predictions, it’s way too soon for DOJ to take a victory lap.

For one thing, Attorney General Eric Holder has amassed an underwhelming track record in prosecuting perpetrators of unspeakable and fatal health, safety, and workplace crimes, including Don Blankenship, former chief executive officer of Massey Energy, whose obsession with “digging coal” without pausing to ensure safety requirements are met, led to extraordinarily hazardous working conditions at the Upper Big Branch mine, where 29 miners died in the worst disaster in 40 years; and Stewart Parnell, the chief executive of the Peanut Corporation of America, whose decision to ship peanut paste that tested positive for salmonella killed nine and sickened hundreds. Elsewhere in the regulatory arena, Holder has not yet delivered on prosecuting  financial crimes documented in two dozen books, television programs, and movies.

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Two Years After Upper Big Branch Disaster, Where Are the Reforms?

Congress usually enacts new public protections following a major crisis or series of crises that focus attention on the failure of existing laws to protect the public or the environment from abuses by companies pursuing economic gain. 

Most of the protective regulatory programs of the Progressive Era, the New Deal, and the Public Interest Era (the period of active government extending roughly from the mid-1960s through the mid-1970s) were established after widely publicized tragedies or abuses stirred public opinion to levels sufficient to overcome the inertial forces that otherwise overwhelm Congress and the regulatory agencies.

Federal regulation of mine safety and health is an excellent example of this phenomenon.

The Federal Coal Mine Health and Safety Act of 1969 was enacted in direct response to the November 20, 1968 explosion at the Consolidation Coal Company’s Console Number 9 mine in Farmington, West Virginia that killed 75 miners and 3 federal inspectors.  That disaster also inspired Congress to enact the Occupational Safety and Health Act of 1970. 

Congress enacted the Federal Mine Safety and Health Act of 1977 in response to explosions on March 11 and 13, 1976 at the Scotia Coal Company’s Scotia mine in Ovenfork, Kentucky.  The initial explosion killed 15 miners, and a second explosion two days later took the lives of three federal inspectors and eight members of two rescue teams.

An explosion at International Coal Company’s Sago mine in Buckhannon, West Virginia on the morning of January 2, 2006 killed 13 miners and motivated Congress to enact the Mine Improvement and New Emergency Response (MINER) Act of 2006.

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Don Blankenship Still Needs to Be Prosecuted

Booth Goodwin, the U.S. Attorney for the southern district of West Virginia, and Attorney General Eric Holder announced today a landmark settlement with Alpha Natural Resources, the coal company that bought out its rival Massey Energy after a catastrophic explosion deep within the Big Branch mine killed 29 miners.  Alpha recently announced that its third quarter 2011 profits had more than doubled in the wake of its purchase of  Massey, up to $66 million in the quarter.  The settlement requires the company to fork over $209 million to pay fines, reimburse families of miners killed and injured, and to fix the chronic safety problems that produced this tragedy.  The announcement had no news on  efforts to hold individuals accountable—most notably, Don Blankenship, the rogue CEO who constantly harassed his employees to “dig coal” faster, and faster, and faster, at the expense of routine safety precautions. 

As I explained here in May 2010, Blankenship monitored production as often as every two hours, deliberately creating an atmosphere in which workers feared for their jobs if they protested routine and egregious safety violations.  The proximate cause of the explosion was methane build-up in an old coal shaft that was never properly sealed—instead, miners stuffed it with garbage and rags.  “Every single day, the levels were double or triple what they were supposed to be,” a foreman who remained unnamed because he was afraid of losing his job told the New York Times.   Blankenship ultimately retired from Massey Energy, and is now enjoying a well-heeled retirement.

Attorney General Holder pledged today that “we continue to investigate individuals associated with this tragedy.” DOL Secretary Hilda Solis said “Anyone determined to have violated a criminal statute in connection with Upper Big Branch should be brought to justice." Ken Ward of the Charleston Gazette’s immensely useful Coal Tattoo blog thinks it’s indeed possible that Goodwin is not finished with this case, and I surely hope that insight is correct.  The U.S. attorney certainly knows how to put people in jail: he brags on his website about a sentence of 57 months in prison his office achieved for an oxycodone dealer who sold between $36,000 and $50,000 worth of the drug out of his home.  Surely the deaths of 29 people as a result of willful negligence in avid pursuit of corporate profits should reap a harsher penalty – or some penalty that goes beyond corporate fines.

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Administration's Regulatory 'Look-Back' Announcement Panders to Industry, Focuses Primarily on Eliminating Regs, Diverts Agencies from Crucial Work

Following up on President Obama’s January Executive Order calling for agencies to conduct a regulatory “look-back,” the Administration today released a target list of health, safety, and environmental standards to be reviewed by agencies in the coming months, with an eye toward eliminating or modifying them.

The President’s January announcement was driven by politics, and from all appearances, the process of reviewing these regulations will be as well. In an op-ed in today’s Wall Street Journal, and in a speech today at the American Enterprise Institute – note the conservative venues chosen – “Regulatory Czar” Cass Sunstein, Administrator of the White House Office of Information and Regulatory Affairs, not only unveiled the target list but once again deployed the kind of anti-regulatory rhetoric one might expect from the Chamber of Commerce. Sunstein asserts that "Our goal is to change the regulatory culture of Washington by constantly asking what's working and what isn't. To achieve that goal, we need to obtain real-world evidence and data." The ugly implication, and it's incorrect, is that agencies don't currently carefully examine real-world evidence and data.

Several points stand out. First, what the White House initially billed last January as an objective examination of regulations appears to have been transformed into a blatantly one-sided effort to loosen restrictions on industry while paying little heed to the numerous threats to public health and the environment that remain unchecked. The Administration previously said that in addition to looking for regulations that are "excessively burdensome," it would also look for rules that are "insufficient" and might needed to be “expand[ed].” But today the notion of strengthening safeguards seems to have dropped out of the conversation.

Second, the Administration’s pandering to industry on this issue is in danger of doing long-term damage to the important business of protecting Americans from a variety of hazards. For one thing, the entire frame for this conversation, the one chosen by the White House in the President’s January op-ed in the Wall Street Journal, is that regulation is bad for the economy and needs to be trimmed back. In fact, regulation strengthens the economy, saves lives, keeps American healthy and safe, and in a variety of ways contributes to Americans’ quality of life. In addition, it’s worth noting that many of the rules identified today are not examples of bad rulemaking, but rather of rules that have simply been overtaken by technology—a reexamination of a rule requiring vapor recovery systems at gas stations that has become less crucial because automobiles now have similar technology on-board, for example. Such rules made sense when adopted, and should be updated as needed. But spare us the “stupid regulation” rhetoric, please.

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The McAteer Report: A Mine Safety Blockbuster

The report issued this morning by the Governor's Independent Investigation Panel on the West Virginia mine explosion that killed 29 miners at the Massey Energy Company’s Upper Big Branch Mine just over a year ago will never make the New York Times best seller list. But it should be required reading for all policymakers with responsibility for protecting the safety of the workers who spend much of their lives deep underground digging coal.

Although the Mine Safety and Health Administration (MSHA) and Massey Energy have conducted their own investigations (MSHA's is forthcoming) into the causes of the tragic explosion, Joe Manchin, then the Governor, correctly assumed that the full story was not likely to come out of two entities with such an obvious stake in the outcome. He asked Davitt McAteer, the head of MSHA during the Clinton Administration and a long-time advocate of greater safety in the nation’s underground mines to assemble an independent and objective panel to investigate the explosion. McAteer brought together a team composed of experts without any special connection to the coal industry or its regulators.

The tightly drafted 120-page report provides a clear and detailed account of events that preceded and followed the explosion and of what we know about its causes based on its own examination of the physical evidence and on more thant 300 interviews with persons involved in the explosion and in the management of the Massey Energy Company. 

The panel concludes that the immediate cause of the explosion was methane gas that had reached unsafe levels in the mine. Massey Energy took the position that there was a massive entry of methane into the chamber through a crack in the floor that inundated the mine. The governor’s panel, by contrast, concluded that the explosion was caused by a small amount of methane that, once ignited by a spark from a shearer, caused a fireball that spread to coal dust that had inexcusably been allowed to build up for miles throughout the mine. The coal dust in turn carried the explosion throughout more than two miles of the large mine. The report implies that the ignition of a small amount of methane would not have caused the massive explosion and that absent the negligent accumulations of coal dust, the miners might well have survived the explosion.

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Echoes of the Triangle Shirtwaist Fire in Today’s Debate over Regulation

One hundred years ago today, 146 people perished in one of the nation’s worst workplace tragedies – the Triangle Shirtwaist Factory Fire in the heart of New York City. The story is gruesome, and each detail of exactly how so many people were trapped in a burning building was, and remains, a reminder of what can happen when worker safety is sacrificed in the name of profit.

Here’s the barest sketch. The Triangle Waist Factory in lower Manhattan relied on cheap, exploitable labor to produce women’s blouses – shirtwaists, as they were known. The factory occupied the 8th, 9th and 10th floors of a building at 29 Washington Place, and its employees were mostly young immigrant women, some as young as 14. They’d come to the United States for a better life, and found themselves working more than 50 hours a week, six days a week, in a non-union shop, laboring under sweatshop conditions. (This, of course, was before unions had essentially created the concept of “the weekend.”)

On March 25, 1911, at about 4:45 p.m., fire broke out on the 8th floor and spread quickly to floors above, fueled by piles of fabric scraps. The factory had no alarm system and no sprinklers, although such technology was available. Workers were quickly trapped, not just by the flames but by doors locked by company officials worried that workers would abscond with fabric if allowed to leave by any but the main door. The fire escapes did not reach to the ground, and eventually collapsed under the weight of the many escapees. A heroic elevator operator made several rescue runs but had to abandon the effort when the elevator’s guide rails buckled under the heat. Responding fire trucks lacked ladders that could reach the victims. Faced with the prospect of being burned alive, many of the workers chose instead to leap to their deaths. 

Watching in shock that day was a young social worker, Frances Perkins, who would go on to champion a successful crusade for safer working conditions. (She would later become the first female Cabinet member, serving as FDR’s Labor Secretary.)

In a spot-on piece in Wednesday’s Washington Post, columnist Harold Meyerson observes that industry rose in opposition to Perkins’ proposed reforms, offering arguments that ring familiar even today. Proposed fire code reforms would cause “the wiping out of industry in this state,” said the Associated Industries of New York, and were “absolutely needless and useless,” said a lawyer for the Real Estate Board of New York City. The president of the Real Estate Board argued that, “To my mind this is all wrong….The experience of the past proves conclusively that the best government is the least possible government, that the unfettered initiative of the individual is the force that makes a country great and that this initiative should never be bound…”

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Obama’s Path Forward: Impart a Sense of Urgency to Regulatory Agencies Protecting Health, Safety and the Environment

There’s a lot of punditry left to be committed about whether and how the GOP majority in the House and the enhanced GOP minority in the Senate will work with the Obama Administration. I’m not optimistic. But even if the President and House Republicans are able to find some small patch of common ground, the hard reality that progressives need to swallow is that whatever major progressive legislation will bear Barack Obama’s signature has already become law, at least for his first term.

The same is not true, however, for what Barack Obama might accomplish simply by infusing the health and safety  agencies in his Administration—from EPA to OSHA to FDA—with a sense of urgency, clearing away barriers to regulatory progress within his own White House, and insisting that the agencies enforce existing laws with newfound vigor. A string of catastrophes have shown that we need proactive government at least as much in these areas as we need cops on the beat in neighborhoods and airport security, even as Americans claim to hate government in a larger sense.

Resurrection of these agencies was a low priority for the President during his first two years. He made great appointments, but then left the agencies to cope with budget shortfalls and inadequate legal authority. As just one especially shocking example, FDA cannot order a recall of salmonella-poisoned food but instead must depend on the producer’s cooperation to get the food off the shelves. Worst of all, Cass Sunstein, his appointee to the post of “regulatory czar,” where he essentially supervises the agencies from the White House, has in many ways continued the Bush II pattern of red tape and neglect. “Yes we can” became “No we won’t” in too many instances. His small office continues to serve as a lobby for any powerful business interest—from coal companies to chemical manufacturers—intent on consigning the cops to desk duty.  

Republicans followed the pattern of the Bush II Administration, screaming about overregulation and even going so far as to protest the rough treatment of British Petroleum in the Gulf. As usual, they gained traction by ranting against government writ large, not by acknowledging the need—no, the expectation and rock-solid demand—that these first-line responders keep Americans safe.

The predictable result was a mixed record--some regulators seized the opportunity and moved briskly ahead. Others bogged down.  

All of that is squarely within the President’s power to fix. But will he?

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