The Republican Chairman Mark Meadows (R-NC) and Ranking Member Gerry Connolly (D-VA)and other subcommittee members, peppered him with questions about OIRA’s lack of transparency in numerous arenas. Their motivations were different, but they were equally tough in their questioning. Republicans don’t think OIRA is doing enough to reign in regulatory agencies, while Democrats want OIRA to complement, not impede, agencies’ work.Full text
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.Full text
The Texas Public Utility Commission, which sets electricity rates for the state and allows adjustments for fuel costs, has recently proposed amendments to its procedural rules that would limit consumer advocate input into potentially abusive rate changes.
Prior to any rate changes, the Commission holds public hearings where experts for the utility companies present highly technical reports drawn from their own data. Representatives of consumer groups can participate in these hearings, but they typically advance consumer interests by challenging the data and assumptions presented by the industry's experts.
The Commission has proposed to limit the amount of demands for information that consumer advocates can make of utility companies and the number of written question they can submit at public hearings.
In an op-ed for yesterday's Austin-American Statesman, CPR Scholar and University of Texas School of Law professor Tom McGarity lays out the potential problems for consumers if the rule goes forward. McGarity notes:
Most of us take for granted the large role that electricity plays in our daily lives until we receive our monthly electric bills. And most of us are unaware of the role that consumer advocates play in keeping those bills as low as possible. But we had best pay attention to a battle that is brewing between consumer advocates and the electric utility industry in the Texas Public Utility Commission, because it has serious implications for the rates that we will pay for electricity in the future.
Lawyers for the electric utility companies have persuaded the commission to propose amendments to its procedural rules that will seriously impede consumer advocates’ efforts to keep utility companies honest in most of its hearings related to electricity rates.
To read the full piece, click here.
The Republicans’ choice for head of the CBO, Keith Hall, spent some time at a libertarian think tank reportedly funded by the Koch brothers, where he wrote about the effect of regulation on employment. Hall argued that regulations cause unemployment (include indirect effects because of price changes), and that the costs of unemployment should be included in regulatory cost-benefit analysis.
In principle, it seems right to include the special harms associated with job loss in cost-benefit analysis (not just for regulations but everything else too). There’s all kinds of evidence that being fired or laid off is very damaging to people, and that’s a genuine cost — assuming that we can reliably quantify the effect. As Hall has said:
“The immediate impact of job loss includes lost wages, job search costs, and retraining costs. Further, research shows that even after reemployment it can take as long as 20 years for workers to catch up on lost earnings, largely due to skill mismatches between the jobs lost and the new jobs created in the economy. These losses occur at different lengths of job tenure, in all major industries, and with workers of any age.”
As I said, this seems right in principle. But there are some important caveats.Full text
Last December, the Justice Department announced the indictiment of the owner/head pharmacist, the supervising pharmacist, and 12 others associated with the New England Compounding Compounding Center. The 131-count indictment, which included 25 charges of second-degree murder, grew out of a 2012 outbreak of fungal meningitis caused by contaminated drugs manufactured by the company. More than 750 patients were diagnosed with the illness as a result, and 64 patients in nine states died from it. ?
In a February 28, 2015, op-ed in USA Today, CPR President Rena Steinzor, author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction, recounts the story and then takes a look at how policymakers reacted, and what came of their response. The tragedy laid bare a gaping hole in the nation's regulatory fabric, and rather than addressing it with straightforward legislation and resources to enforce it, Congress pass a "market-based" bill that allowed individual compounding pharmacies to decide for themselves if they'd like to be regulated or not. She writes:
In March 2013, Congress passed bipartisan legislation to fix the problem. Incredibly, though, it allowed compounding pharmacists to decide whether to volunteer to be regulated. Unless they register with the FDA, the agency has no way of knowing about them except through patient and medical professional complaints, a reporting method that in many cases comes far too late. The rationale? Market forces will take care of the problem because no hospital or treatment center will want to deal with an unregistered company.
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?Full text
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.Full text
This week, the Maryland General Assembly will review new legislation that could help ensure safer workplaces in the state’s construction industry. The proposal, which is a type of “responsible contracting” legislation similar to other policies being tested out in states and municipalities across the country, would require companies that put in bids for work on public works projects in Maryland to attest that they have workplace health and safety programs and that they would implement the programs in construction projects done on the public dime.
It’s an important piece of legislation, given the dangers in the industry. As we noted in our Winning Safer Workplaces manual,
"Construction is one of the most hazardous industries for workers. Frequent injuries and deaths from falls, electrocutions, and striking objects impose unbearably high costs on individuals, families, and local economies. Public Citizen estimates that, between 2008 and 2010, fatal and nonfatal construction injuries cost the states of Maryland $713 million, Washington $762 million, and California $2.9 billion in medical services, lost productivity, administrative expenses, and lost quality of life. The firms responsible for many of these injuries and fatalities, and those with histories of citations for unsafe practices, continue to receive contracts from state and local governments."
Today, the House Economic Matters committee will hear testimony on a proposal to use the Maryland government’s vast purchasing power as a tool for promoting safer construction work practices. I submitted testimony in support of the bill because it is a smart way to ensure workers are being protected in a state where the AFL-CIO estimates it would take 108 years for occupational health and safety inspectors to visit every workplace.Full text
Today I joined a group more than 40 environmental law professors and clinicians from institutions around the nation in a joint letter to the University of North Carolina System Board of Governors urging that they reject a recommendation to shutter the Center on Poverty, Work and Opportunity, housed at the University of North Carolina Law School. That unfortunate recommendation arose from a special committee created by the board at the direction of the legislature to review all 237 of the state university system’s centers, in the wake of criticism of state anti-poverty efforts by the Center’s director, Professor Gene Nichol.
To be clear, the Center takes no money from the state, and hasn’t since 2009. It’s funded by private contributions. It’s being targeted not to save money, but because some in the legislature would rather not have to be reminded of poverty, and don’t have the stomach for criticism of their policies. And since Professor Nichol’s criticisms were a trigger for the special committee’s review, it’s no surprise that the committee has taken aim at the Center.
I’m not directly affiliated with the Center, but our Center for Law, Environment, Adaptation, and Resources (CLEAR) at UNC Law has been looking to work with both the Poverty Center and the Carolina Law School’s Center for Civil Rights to try and address how to minimize the disparate impacts on the poor and minorities from climate change that are going to happen at the North Carolina coast. But aside from my belief that the Poverty Center has much to contribute to advancement of environmental protection, I and my environmental colleagues around the country are writing because we find it hard to sit by while legislators seek to muzzle their critics in academia. Here’s what we say in the letter:
We represent a national group of environmental law professors and clinicians from over forty public and private law schools. Our discipline has faced similar politically motivated criticisms in the past, and will likely do so again in the future. We urge the North Carolina Board of Governors, and all regulators of institutes of higher education, to reject basing university decisions on the popularity of political positions. We come to this position based on important experience in our environmental legal field.Full text
Our intrepid colleague Celeste Monforton, who writes at the Pump Handle blog, recently passed along a neat example of a tool that we wrote about in our Winning Safer Workplaces manual. Minnesota’s Office of the Legislative Auditor released a report on the state’s regulatory protections for meatpacking workers. As we noted in the Winning Safer Workplaces manual, state-level oversight of government regulation can be a valuable tool for advocates who are fighting for stronger workplace protections. The results of new audits can clarify what is working—and what is not working—about the regulatory system, giving advocates critical information that they might use in new campaigns. The audit process itself, by focusing outside attention on programs that may be insulated from regular or public oversight, can also have positive effects for the programs’ intended beneficiaries (here, workers).Full text