CPR Archive for Thomas McGarity

President Obama’s Progressive Vision for the Future

by Thomas McGarity | January 13, 2016

President Obama devoted his final state-of-the-union speech to highlighting his administration’s considerable accomplishments, and, more importantly, to articulating a surprisingly robust progressive vision for the future.

And that vision properly included a large role for federal regulation. 

Noting that “reckless Wall Street,” not food stamp recipients, caused the financial meltdown of 2008-09, the President predicted, “working families won’t get more opportunity or bigger paychecks by letting big banks or big oil or hedge funds make their own rules at the expense of everyone else.” 

The obvious corollary is that the federal government must maintain a strong regulatory system to prevent companies from imposing risks to the financial and physical health of the American people and to their shared environment. We must therefore design and maintain a regulatory system that is impervious to capture by the companies that it is designed to regulate.

The President did throw a sop to the Republican side of the room when he vowed to continue the Administration’s efforts to locate and weed out ineffective regulations and reduce red tape. 

Since every president since President Carter has pledged to do the same thing, one would think that few truly unnecessary regulations are left to repeal.  But it is always a good idea for agencies to be open to revising or even repealing regulations in light of changes in technology, scientific understandings, business practices or other relevant circumstances. 

One would ...

CPR's McGarity Responds to EPA's New Ozone Standard

by Thomas McGarity | October 01, 2015
The new primary ozone standard of 70 parts per billion (ppb) is definitely a step in the right direction, but it has taken EPA far too long to make this much-needed change. We should not forget, however, that EPA Administrator Lisa Jackson sent a proposed standard of 65 ppb to the White House in August 2011, but was told explicitly by President Obama to withdraw it because the White House economists thought it would be too costly for business, despite ...

FDA's New Regulations for Food Processors: The Devil is in the Implementation

by Thomas McGarity | September 14, 2015
At long last, the Food and Drug Administration has promulgated two critical regulations implementing the Food Safety Modernization Act of 2011 (FSMA).  The regulations flesh out the statute’s requirements for facilities that process human food and animal feed.  Of the regulations that FDA has proposed in order to implement the FSMA, these are perhaps the least controversial.  Indeed, they have won praise from everyone from the Grocery Manufacturers Association to the food safety director of the Pew Charitable Trusts.  This ...

Hurricane Katrina and the Perversity Thesis

by Thomas McGarity | August 26, 2015
In Albert O. Hirschman’s brilliant analysis of conservative responses to progressive social programs entitled The Rhetoric of Reaction, he identifies and critiques three reactionary narratives that conservatives use to critique governmental programs -- the futility thesis; the jeopardy thesis; and the perversity thesis. The futility thesis posits that governmental attempts to cure social ills or to correct alleged market imperfections are doomed to fail because the government cannot possibly identify the problem with sufficient clarity, predict the future with sufficient ...

The Supreme Court Gives Power Plants a Mercury Break

by Thomas McGarity | June 30, 2015
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 ...

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

by Thomas McGarity | June 29, 2015
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 ...

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

by Thomas McGarity | June 15, 2015
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 ...

Corporate Crime Is Not 'Civil Disobedience'

by Thomas McGarity | May 26, 2015
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 ...

Becoming an Environmentalist on the Neches River

by Thomas McGarity | April 17, 2015
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 ...

CPR Member Scholars file Comments on OSHA’s Silica Proposal

by Thomas McGarity | February 12, 2014
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 ...

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

by Thomas McGarity | November 14, 2013
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 ...

The human cost of regulatory ossification

by Thomas McGarity | November 06, 2013
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 ...

A Long History of Analysis and Intervention

by Thomas McGarity | October 02, 2013
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 ...

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

by Thomas McGarity | August 23, 2013
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 ...

President Obama’s Executive Order on Chemical Facility Safety Is a Step in the Right Direction

by Thomas McGarity | August 02, 2013
Yesterday President Obama signed an executive order, entitled “Improving Chemical Facility Safety and Security,” that is designed to get state, federal and local chemical safety agencies and first responders to improve coordination, information gathering, and regulation with respect to the risks posed by the many highly reactive chemical compounds that are stored and used throughout the United States. Inspired by the tragic explosion of a fertilizer plant in West, Texas on April 17 of this year, the Executive Order establishes ...

CPR Scholar Tom McGarity to Testify at Senate Hearing on Toxic Chemical Reform

by Thomas McGarity | July 31, 2013
This morning, CPR Member Scholar Tom McGarity testifies at the Senate Committee on Environment & Public Works on "Strengthening Public Health Protections by Addressing Toxic Chemical Threats." His testimony can be found in full here. McGarity contributed the following blog post in advance of the hearing.  The Chemical Safety Improvement Act: The Wrong Way to Fix a Broken Federal Statute We live in an era in which human health and the environment are threatened by toxic chemicals that have not ...

Anything but Generic: Supreme Court Preemption Opinion Calls for Correction from Congress and the FDA

by Thomas McGarity | July 02, 2013
Lost among the high-profile opinions that the Supreme Court issued during the past two weeks was a case that attracted little media attention, but is of great importance to the millions of Americans who take generic drugs. Karen Bartlett, a secretary for an insurance company filed the lawsuit against generic drug manufacturer Mutual Pharmaceutical Company.  When Karen visited her doctor complaining of shoulder pain, he prescribed Clinoril, one of many non-steroidal anti-inflammatory drugs (NSAID) that are commonly used to treat ...

Another Skirmish in the Preemption War: Does FDA Approval Trump Strict Liability?

by Thomas McGarity | March 12, 2013
Next Tuesday, the Supreme Court will hear oral arguments in Mutual Pharmaceutical Co. v. Bartlett, a case that raises once again the troubling question of whether federal regulatory agencies should trump local juries in common law tort actions.  The precise question at issue is whether the fact that the federal Food and Drug Administration (FDA) approved a name-brand drug many years ago precludes a state court jury from holding the manufacturer of the generic version of that drug strictly liable ...

Also from Thomas McGarity

Thomas O. McGarity holds the Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law at the University of Texas in Austin. He is a member of the board of directors of the Center for Progressive Reform, and a past president of the organization.

President Obama’s Progressive Vision for the Future

McGarity | Jan 13, 2016 | Regulatory Policy

CPR's McGarity Responds to EPA's New Ozone Standard

McGarity | Oct 01, 2015 | Regulatory Policy

FDA's New Regulations for Food Processors: The Devil is in the Implementation

McGarity | Sep 14, 2015 | Food, Drug, Product Safety

Hurricane Katrina and the Perversity Thesis

McGarity | Aug 26, 2015 | Environmental Policy

The Supreme Court Gives Power Plants a Mercury Break

McGarity | Jun 30, 2015 | Environmental Policy
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