Thomas McGarity on CPRBlog {Bio}
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The Supreme Court Gives Power Plants a Mercury Break

Yesterday, the Supreme Court in Michigan v. EPA threw out EPA’s regulations protecting the American public from mercury and other hazardous emissions of power plants.

In another instance of judicial activism by the Roberts court, the majority refused to defer to EPA’s decision to ignore costs in deciding whether to regulate power plant emissions.

The decision turned on the meaning of the word “appropriate” in a section of the Clean Air Act that addressed hazardous air pollutant (HAP) emissions from fossil fuel-fired power plants. Before EPA subjected HAPs emissions from power plants to stringent technology-based regulations, it had to decide whether regulating those emissions was “appropriate and necessary,” given the other controls that the statute imposed on power plants to reduce acid rain. 

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Supreme Court's Judicial Activism Leaves Americans Vulnerable to Mercury Pollution

In a sweeping display of judicial activism the Supreme Court has made it much harder for the EPA to protect Americans from the dangers of exposure to mercury emissions.

The Supreme Court today tossed out EPA’s regulations protecting the American public from mercury and other hazardous emissions of power plants. 

Justice Scalia refused to defer to EPA’s decision to ignore costs in deciding whether to regulate power plant emissions.

Unfortunately, this means that EPA will have to go back to the drawing board and make a fresh determination whether it is appropriate to regulate mercury emissions from power plants after considering the costs of the regulations.

Fortunately, EPA has already determined that the benefits of the regulations far outweigh the costs.  The agency just needs to formalize that determination after allowing public comment on it.

The Supreme Court’s decision will not have much of an impact in states that have already established stringent emissions limitation for mercury under their own laws.

But in states like Ohio and Texas, old power plants that have been belching large quantities of mercury and other hazardous pollutants into the air just got an inappropriate reprieve.

 

 

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What to Expect from the Supreme Court's Clean Air Mercury Decision

In the shadow of the upcoming Supreme Court decisions on Obamacare and same-sex marriage is an important environmental case that has important implications for the health of women of childbearing age in America.  The Court will decide whether to uphold the Environmental Protection Agency’s stringent limitations for emissions of the toxic metal mercury from the nation’s coal- and oil-fired power plants. And as with the Obamacare case, the case turns on a matter of language: the single word, “appropriate.” 

If the Court adheres to a long line of its own precedents on how courts are to interpret statutes that delegate decisionmaking power to regulatory agencies, the case should be an easy win for EPA.  If, however, some of the Justices cannot resist the temptation to impose their own policy preferences on EPA, the upcoming decision could be a very bad one for environmental regulation and, more importantly, for millions of expectant mothers in the future.

All coal contains small amounts of mercury, and that contaminant is not consumed when the coal is burned.  Consequently, all coal-burning power plants send small amounts of mercury up their smokestacks. Eventually, the mercury falls back to earth, and is converted by natural processes to methyl mercury, a chemical that is a potent neurotoxin in adults, children and fetuses. There is no known “safe” level of methylmercury in the bloodstream below which it no longer demonstrates these effects.  

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Corporate Crime Is Not 'Civil Disobedience'

Cross-posted with ACSBlog.

The Wall Street Journal recently devoted nearly two pages of its Saturday Review section to an editorial by Charles Murray of the American Enterprise Institute urging American corporations to violate laws that they deem to be “pointless, stupid or tyrannical” as acts of civil disobedience.  The article, which is a capsule summary of his recently published book titled By the People: Rebuilding Liberty Without Permission,” betrays a profound misunderstanding of the concept of civil disobedience and a deplorable contempt for the laws that Congress and state legislatures have enacted to protect their citizens from corporate malfeasance.

This is, of course, the same Charles Murray who has made millions of dollars writing poorly documented books like The Bell Curve and Losing Ground, which were designed to allow conservative politicians to feel good about reducing welfare for the poor, limiting immigration from Latin America, and eliminating affirmative action policies.  If for no other reason than that Charles Murray is one of almost-candidate Jeb Bush’s favorite authors, his newest salvo bears close scrutiny.

The essential underlying premise of the article is that the Code of Federal Regulations is chock full of senseless regulations, the violation of which could not possibly lead to any actual harm to anyone.  This premise is an article of faith for critics of federal regulation, but it has little basis in fact.  The one actual regulation he cites (an OSHA standard requiring railings for exposed stairway floor openings to be 42 inches high) may be far more detailed in its specification than it needs to be, but it is by no means senseless.  As Murray recognizes, it is intended to prevent workers from precipitous falls.

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Becoming an Environmentalist on the Neches River

Growing up in Port Neches, Texas, long before anyone ever heard of Earth Day, it was not hard to be an environmentalist. 

When my father announced that the family would be moving to Port Neches, he tried to soften the blow to his 13-year-old son by stressing the fact that we would be living across the street from the city park and that the Neches River ran along one end of the park.  For the remainder of the summer, I could go fishing any time I wanted.

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CPR Member Scholars file Comments on OSHA’s Silica Proposal

At long last, the comment period on OSHA’s silica proposal has closed and the next phase in this rule’s protracted timeline will commence.  In the four months since OSHA released the proposal, the agency has received hundreds of comments.  They run the gamut, from the expected support of unions and other advocates for working people, to the fear-mongering hyperbole of the major trade associations.  CPR Member Scholars Sid Shapiro and Martha McCluskey joined us in submitting our own comments to the record.  You can read them here.

Silica dust is a pervasive occupational hazard.  The vast majority of exposed workers toil in the construction industry, where clouds of dust surrounding jackhammers, masonry and concrete saws, and brick and mortar work are an all too common sight.  OSHA seeks to eliminate those dangerous conditions by encouraging employers to provide modern tools that have better dust collectors, shrouds, and water feeds to suppress the dust.  The proposal also addresses the myriad other industries where silica exposure leads to debilitating cases of lung cancer, silicosis, and silica-related kidney disease.  Dental laboratories, ship repair companies, and ceramic refractories will also be subject to the rule’s new requirements.

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FDA’s preventive controls rule: hollowed out by OIRA, and less costly than the agency suggests

 From frozen meals and spices to nutbutters and cheeses, processed foods have been responsible for an alarming number of outbreaks in recent years.

The FDA’s proposed rule on “preventive controls for human food” would require manufacturers, processors, and warehouses to design a written food safety plan tailored to each facility’s products and operations. (The rule would also apply to mixed-type facilities that conduct processing activities on a farm.) In general, facilities would have to identify the potential hazards in their processes and then implement controls to minimize or prevent them. This system—Hazard Analysis and Risk-Based Preventive Controls, or HARPC—is intended to address microbiological, chemical, physical, and radiological hazards in food processing, as well as undeclared allergens.

CPR Member Scholars Rena Steinzor, Lisa Heinzerling, Sidney Shapiro, Policy Analyst Michael Patoka and I submitted comments to the FDA, urging the agency to issue the final rule as soon as possible and to select the options that are most protective of public health.

FDA Must Restore the Essential Provisions Eliminated by OIRA

During the 13 months the rule spent under review at the White House, the Office of Information and Regulatory Affairs (OIRA) eliminated a number of crucial provisions that the FDA had originally proposed, including requirements for:

(1)    Certain sanitation practices;

(2)    Food-safety training for employees;

(3)    Review of consumer complaints;

(4)    Environmental monitoring for pathogens (testing of locations throughout the facility);

(5)    Finished product testing;

(6)    Supplier approval and verification programs; and

(7)    Review of the records associated with these activities.

In the gutted version that emerged from OIRA’s review, the FDA clarified that it is not proposing any of these measures at this time but is instead just requesting comment on them. Meanwhile, all the information prepared by the agency to explain and justify these requirements was relegated to an appendix at the back of the preamble

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The human cost of regulatory ossification

Tomorrow, a subcommittee of the Senate Judiciary Committee chaired by Senator Richard Blumenthal (D. Connecticut) hosts a Hearing on the consequences of excessive regulatory “ossification” entitled, “Justice Delayed II: The Impact of Nonrule Rulemaking on Auto Safety and Mental Health.”  I will be testifying at that hearing on the effects of agencies’ moving to more informal rule-making procedures as a way to avoid the burdensome analytical and internal review requirements that currently make it so difficult for them to promulgate rules.

During the 1980s and 1990s, the rulemaking process became increasingly rigid and cumbersome as presidents, courts and Congress added an assortment of analytical requirements to the simple rulemaking model and as evolving judicial doctrines obliged agencies to take great pains to ensure that the technical bases for rules were capable of withstanding judicial scrutiny under what is now called the “hard look” doctrine of judicial review.  More than twenty years ago, Professor E. Donald Elliott, himself a former General Counsel of the Environmental Protection Agency, referred to this phenomenon as the "ossification" of the rulemaking process, and I wrote an article based on my study for the Carnegie Commission describing the ossification phenomenon, identifying some of its causes, and suggesting some ways to “de-ossify” the rulemaking process. 

My 2012 article on “blood sport” rulemaking highlights many of the tactics that stakeholders now use for slowing down or influencing the outcome of high-stakes rulemaking proceedings, many of which are employed outside the APA’s notice-and-comment process. Under the pressure of constant opposition from the regulated industries and with only sporadic countervailing pressure from beneficiaries of the regulated programs, statutory deadlines are missed, ambitious policy goals remain unachieved, and the protections envisioned by the authors of the statute gradually erode away.   

Along with many other scholars, I am convinced that the current rulemaking process is not merely ossified -- it is broken. 

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A Long History of Analysis and Intervention

The origins of Executive Order 12866 go all the way back to the Nixon and Ford Administrations. 

Soon after the enactment of the Occupational Safety and Health Act and the Clean Air and Water Acts, affected industries began to complain bitterly about the burdens the new wave of public interest statutes imposed on them. 

The business community was also chaffing under the National Environmental Policy Act’s requirement that federal agencies prepare environmental impact statements (EISs) for major federal actions that significantly affect the quality of the human environment. Although the EIS requirement only applied to federal agencies, it was applicable when a company needed a permit to build a nuclear power plant, drill on federal lands, and many other business related activities.

The business community observed the potential for EIS requirements to bog down agencies in a great deal of paperwork prior to taking action and decided that what was sauce for the goose was sauce for the gander. They posited: why not make regulatory agencies prepare lengthy statements detailing the effects of major regulatory actions not only on the environment, but on the regulated industries themselves?

Responding to calls for economic impact statements, the business-friendly Office of Management and Budget (OMB) persuaded President Nixon to require the newly created Environmental Protection Agency and Occupational Safety and Health Administration to send their proposed regulations through an interagency "Qualify of Life" review. The agencies were required to prepare a summary of the costs of each proposed regulation and its alternatives to accompany it through the review process.


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OSHA Announces Proposed Silica Rule – Let’s Keep it Rolling

After more than two years of White House review, OSHA has finally published its proposed new standards for silica exposure. Secretary of Labor Tom Perez, Assistant Secretary David Michaels, and many other people both inside and outside the agency deserve congratulations for finally shaking the proposal loose from the clutches of the president’s regulatory review team in OMB’s Office of Information and Regulatory Affairs. The publication of the proposal is an important step towards protecting millions of Americans who are exposed to the deadly dust in their workplaces.

But this is no time for the agency to rest on its laurels. As GAO noted in a recent report, OSHA proposals published in the 2000s took an average of three years to reach the “final rule” stage. If it takes that long to publish the final silica rule, it will be in jeopardy of falling prey to election-year politics. The Obama administration’s regulatory agencies published fewer final rules in 2012 than the agencies published in any of the prior 15 years. (Thanks to Curtis Copeland for this analysis.) It is incumbent upon Secretary Perez, Assistant Secretary Michaels, and their entire team to keep this rule moving along expeditiously. That means no extensions of the comment periods, efficient management of the rulemaking hearings, and a hardline stance against the White House’s regulatory review team, which has a history of holding up this rule.

Today marks an important step forward for workers, but the finish line is a long way off.

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