James Goodwin on CPRBlog {Bio}
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CPR Member Scholars Call on Congress to Reject 'Unnecessary' and 'Unwise' REINS Act

This morning, the House Judiciary Committee is holding a markup on the Regulations from the Executive in Need of Scrutiny Act of 2015, or REINS Act (H.R. 427).  Even among the many extreme antiregulatory bills that Congress has considered this session, the REINS Act still stands out for its breathtaking audacity.  If enacted, this bill would block the most important environmental, safety, and public health regulations from taking effect unless Congress affirmatively approves them within the extraordinarily short period of 70 session days or legislative days.  It is not a stretch to say that many regulations that are now benefitting millions of Americans—such as those limiting lead in gasoline or requiring air bags in automobiles—would never have seen the light of day had the REINS Act been in place.  Versions of this bill have been introduced in both chambers of Congress over the last several sessions, but fortunately none have been enacted into law.

In response to this bill, 83 of the nation’s leading experts on administrative law and regulatory policy have signed on to a letter to the members of Congress expressing their concerns with the REINS Act.  Among the concerns described in the letter are that “the REINS Act would replace the strengths of agency rulemaking with the weaknesses of the legislative process” and that the bill is “counter-democratic.”  Twenty-six CPR Member Scholars were among the experts to sign on to the letter.

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Defeating the Public Interest One Bill at a Time: The ALERT Act (H.R. 1759)

 

Background:  Tomorrow, the full House Judiciary Committee will be holding a markup of the H.R. 1759, the All Economic Regulations are Transparent Act of 2015 (ALERT Act), sponsored by Rep. John Ratcliffe (R-Tex.).  The House of Representatives considered a similar bill during its last session.  (The hearing is also noteworthy, because the committee will be marking up H.R. 427, the Regulations from the Executive in Need of Scrutiny Act of 2015, or REINS Act.  For more information on the REINS Act, see here.)

What the ALERT Act does:  The bill would impose a series of new burdensome reporting requirements on agencies and the White House Office of Information and Regulatory Affairs (OIRA) regarding the progress and impacts of the agencies’ pending rulemakings.  Once a month, agencies would have to provide detailed information about any rules that they are working on, while OIRA would have to issue an annual report detailing the cumulative costs of all rules that have been proposed or finalized during the previous 12 months.  Agencies also would be blocked from implementing their final rules for at least six months until after they have published certain information about the rules on the internet.

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Carry the Zero: The Polluters’ Flawed Arithmetic in the EPA's Hazardous Air Pollution Rule

In the run-up to this morning’s oral arguments before the Supreme Court on the Environmental Protection Agency’s rule to limit hazardous air pollutants from fossil-fueled power plants—and indeed throughout the oral arguments themselves—opponents repeatedly pointed out that the benefits of the rule in reducing mercury pollution were “only” between $4 million and $6 million.  Putting aside the ethically problematic question of trying to put a dollars-and-cents value on achieving improved public health and environmental protection, it is worth pondering this number and what it reveals about the significant methodological flaws that are endemic to cost-benefit analysis.  (For the record, this number is supposed to represent the “value” of lost earning potential of children that the rule would protect against IQ point degradations.  Do you see what I mean about ethically problematic?)

Opponents of the rule claim that this $4-million figure is the only valid benefit estimation of the rule that the EPA should able to count in evaluating its mercury rule.  In making this argument, their real beef is that the EPA has also counted the co-benefits of the rule—that is, benefits that the rule achieves as an incidental byproduct of what is really trying to achieve.  In this case, EPA’s rule is meant to address mercury and other “hazardous” air pollutants, but along the way would significantly reduce particulate matter and ozone, which are classified as- “non-hazardous” air pollutants, but are still known by scientists to cause a host of environmental and public health problems.

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Today at the U.S. Supreme Court: Industry Tries to Shove a Cost-Shaped Peg Into a Benefit-Shaped Hole

When it comes to public safeguards, industry never wants to talk about keeping people healthy and protecting the environment; they’d much rather have a conversation about how safeguards will cut into their profits — the costs in the cost-benefit equation.  Even on matters where Congress, by statute, has made the discussion of regulatory costs legally irrelevant or a matter of only secondary importance, you can rest assured that industry will still be there talking exclusively about costs.  That is largely what is at issue in Michigan v. Environmental Protection Agencywhich is being argued today before the U.S. Supreme Court—another attempt by polluting industries to inject discussions of costs where they don’t belong.

But, for the EPA’s rule to limit mercury and other toxic pollutants from fossil-fueled power plants, the subject of the case, perhaps the most critical issue is the regulatory benefits at stake, and how the fulfillment of those benefits has been on a circuitous journey that is now extending into its 25th year. You read that right. It has been a quarter of a century since Congress first directed the EPA to issue this rule.  That’s when it passed the 1990 Clean Air Act Amendments.  As explained in a 2009 CPR white paper, the rule should have been completed by no later than 2000.  This ongoing delay has come at a huge price for the public health.  With every year that this rule has not been in effect, as many as 94,000 babies have been born in the United States with elevated blood mercury levels—levels high enough to leave them with irreversible brain damage—and as many as 231 children have suffered significant enough impairment of brain function to result in permanent mental retardation.

The fossil fuel industry no doubt wants to distract the public from contemplating the harmful health effects of its polluting activities; hence, it is trying to steer the conversation to regulatory costs in today’s case.  (The fact that these regulatory cost estimates are systematically overstated only provides them with further impetus on this score.)  It might be a useful PR move from their perspective, but it is not a legal requirement under the relevant provision of the 1990 Clean Air Act Amendments.  Let’s hope the Supreme Court will recognize this difference and reject industry’s abhorrent attempt to further delay this already long overdue safeguard for protecting our children’s health.

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Three Quick Reactions to Yesterday's House Oversight Committee Hearing on OIRA

Yesterday, the House Oversight Committee held a hearing on “Challenges Facing OIRA in Ensuring Transparency and Effective Rulemaking” that featured as its only witness the head of the White House’s Office of Information and Regulatory Affairs (OIRA), Administrator Howard Shelanski.   Given that regulations are a huge source of consternation on the Hill, and the prominent role that OIRA plays in the federal regulatory apparatus, oversight hearings involving OIRA always have the potential for fireworks.  Despite this potential, these hearings—which take place once a year or so—tend to be pretty staid affairs with some mild grousing over a few key issues that are undoubtedly worthy of congressional attention—including the delays caused by OIRA’s unacceptably long rule reviews and OIRA’s semiannual tradition of issuing regulatory agendas behind schedule and/or at inconvenient times of the year (i.e., before major holidays).   Yesterday’s had all of this, but it had a few big surprises, too.

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More Fun Than Escaped Llamas: House GOP to Hold Yet Another Antiregulatory Hearing

In keeping with an apparent effort to hold an antiregulatory hearing on any and all days ending in “y,” Congressional Republicans have teed up yet another humdinger for Monday, March 2. That’s when the House Judiciary Committee’s Subcommittee on Regulatory Reform, Commercial and Administrative law will take a closer look at three more antiregulatory bills that have been recycled from previous congresses, including the Responsibly and Professionally Invigorating Development Act of 2015 (RAPID Act), the Sunshine for Regulatory Decrees and Settlements Act of 2015 (SRDSA), and the Searching for and Cutting Regulations that are Unnecessarily Burdensome Act of 2015 (SCRUB Act).  And by “take a closer look,” I mean “recite tired free market platitudes en route to their predetermined conclusion that the passage of these three bills is the only way to prevent regulation-induced economic disaster.”

Others and I have written about all three of the bills in the past, so there’s no need to rehash all of the gory details here.  But, in approaching the hearing, a few thoughts are worth keeping in mind on each of these absurd bills:

The SRDSA.  Last week, I blogged about the SRDSA—a bill that its supporters claim is necessary to prevent so-called “sue and settle” agreements that lead to environmental regulations—to highlight how a recent Government Accountability Office (GAO) report had thoroughly demolished the “sue and settle” myth.  In fact, every claim made by the lead House and Senate sponsors of the SRDSA in their joint press release announcing the bill was directly refuted by the GAO.  Hopefully, this GAO report will be discussed at great length on Monday.   There is, however, a real “sue and settle” problem that is quite distinct from the fallacious one that congressional Republicans are constantly complaining about.  This one involves industrial polluters urging conservative state governments to sue them for their environmental violations, as a means of forestalling citizen suits that seek to hold companies liable for the same environmental violations.  The state dutifully steps in, blocks the citizen suit, and then settles with the company with a slap on the wrist.  The most infamous example of this maneuver took place just before the Duke coal ash spill in North Carolina last year. Any guesses on whether the Republicans will bring that up on Monday?

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What Should be Discussed at the Senate Homeland Security's Hearing on the U.S. Regulatory System (But Probably Won't)

A clock hangs in Room 342 of the Dirksen Senate Office Building—the room where tomorrow at 10:00 am the Republican leadership of the Senate Homeland Security and Government Affairs Committee will convene its first antiregulatory circus hearing of the new Congress.  Below that clock, the hearing will play out according to a now-familiar script:  the Republican members will cite vague constituent concerns about the regulatory system harming their families and businesses; the three industry shills invited by the majority will rehash the same tired and unsubstantiated arguments about how regulations are a drain on the economy; and, by the hearing’s end, a consensus will emerge among the Republican members and their hand-picked witnesses that drastic reforms of the regulatory system are in order.  Along the way, hands will be wrung, fists will be pounded, and vitriol will be spewed.  Something must be done, they’ll exclaim.  That something will assuredly involve more rulemaking procedures that would increase corporations’ already tight grip on the rulemaking process and more lookback procedures for existing regulations that will tie up agencies in knots and waste their dwindling resources.

Meanwhile that clock in Room 342, the one looming just over the Republican members’ heads, will keep ticking.  Tick tick tick.  As each second passes, the country’s most pressing problems will remain unaddressed.  We’ll be no closer to securing funding for transportation infrastructure, which is due to run out in May.  We’ll be no closer to tackling the existential threat of global climate change or the stagnant wages that are holding back millions of American families.  Most astonishingly of all for the members of the Senate Homeland Security Committee, with each tick, we’ll be one second closer to a shutdown of the Department of Homeland Security set to take place this Friday when the agency’s funding officially expires.  Tick tick tick.

Frankly, the timing of this hearing couldn’t be worse for the congressional Republicans who are singularly responsible for the unnecessary game of chicken with the Department of Homeland Security’s funding.  But, if they are going to go through with it, at least they should endeavor to not make it a complete waste of everyone’s precious time.

The Republican committee members are right that the regulatory system is not functioning as well as it could, but their diagnosis of the problem—and the remedies they prescribe as a result—are grossly off the mark.  Over the last 30-plus years, the rulemaking process has become increasingly captured by corporate interests that are intent on avoiding any public accountability, including through compliance with any regulatory safeguards they find inconvenient to their bottom line.  For example, while the rulemaking process was intended to follow a pluralistic model in which agencies would develop new rules based on input from a variety of public stakeholders, industry has been able to leverage its superior resources to dominate these public input processes with the result of diluting and marginalizing the public’s voice.  While regulations are supposed to be grounded in the best available science, industry has succeeded in degrading the scientific method into something more reminiscent of “Calvinball,” manufacturing uncertainty to suit its own ends by keeping the rules of the game in a constant state of flux.

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But Wait, There’s Less! The GOP Has a 'Sue and Settle' Bill They Would Like to Sell You

Last week, Rep. Doug Collins (R-Ga.) and Sen. Chuck Grassley (R-Iowa) continued the parade of anti-regulatory bills resurrected from past sessions of Congress by introducing in their respective chambers the Sunshine for Regulatory Decrees and Settlements Act of 2015 (SRDSA).  While all of these anti-regulatory bills are categorically terrible, the SRDSA really needs to be singled out for special condemnation.  After all, it is the only one of the lot that purports to take on a problem—so-called “sue and settle” litigation—that no less than the Government Accountability Office (GAO) has debunked as a myth.  Nevertheless, Messrs. Collins and Grassley have pressed ahead with the bill—versions of which they introduced previously in 2013—despite the pressing real problems confronting their constituents and our country.

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At Last, the Obama Administration Acknowledges Need for Urgency on Advancing Regulatory Agenda

At last, the Obama Administration is articulating a sense of urgency about moving vitally needed health and safty regulations through its pipeline. Here’s Howard Shelanski, White House Office of Information and Regulatory Affairs, in a Bloomberg BNA story this week:

“So we are working now, here in January of 2015, on getting priorities lined up, so that we do not find ourselves at some point in 2016 with really important policy priorities unexecuted,” Shelanski said.

Later in the interview:

Still, the reason OIRA is working hard with agencies in early 2015 is so they can bring the most important rules through the process this year and finalize them sometime in early 2016, Shelanski said.

It’s about time. Last November, CPR released an Issue Alert calling on the Obama Administration to seize the opportunity offered by its remaining time in office and complete a slate of 13 essential regulatory safeguards that would deliver long-lasting protections for public health, safety, and the environment.  In particular, the Issue Alert urged the Administration to immediately begin taking steps toward charting a course for these and other safeguards that would ensure their completion “by no later than June 30, 2016,” which would ensure that they are not swept up in any political riptides in the months leading up to the 2016 presidential elections and to otherwise insulate them against potential repeal under the Congressional Review Act.

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Department of Transportation’s Crude-by-Rail Safety Standards Keep Chugging Along

According to the Office of Information and Regulatory Affairs’ (OIRA) records, the Department of Transportation submitted its draft final crude-by-rail safety rule for White House review late last week.  OIRA’s review of draft final rules represents the last hurdle in what can be a long and resource-intensive rulemaking process; just about any rule of consequence cannot take effect without OIRA’s final approval.  Once completed, the crude-by-rail rulemaking would help to avoid train derailments and crashes involving the more than 415,000 rail-carloads of flammable crude oil traveling across the United States each year, and to minimize the consequences of such catastrophes if and when they do occur.  A recent CPR Issue Alert featured the rulemaking as among the essential 13 regulatory actions that the Obama Administration should commit to completing during its remaining time in office.

OIRA’s centralized review can be a highly contentious and politically charged process, as it allows corporate interests to attack rules they find inconvenient behind closed doors out of the public view.  A 2011 CPR White Paper found that industry lobbyists dominate these closed-door meetings, with 65 percent of the meetings’ participants representing regulated industries.  In these meetings, industry lobbyists typically find an audience—often made up of the conservative economists that comprise much of OIRA’s staff as well as political operators from the West Wing—that is sympathetic to their pitch.  This White Paper and other academic research has shown that industry dominance of the OIRA review process has its desired antiregulatory effect, resulting in rules being delayed, watered down, and sometimes blocked altogether.  

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