The Guidance Racket

by Rena Steinzor | March 27, 2018

Originally published on The Regulatory Review. Reprinted with permission.

The spirited conservative attack on regulatory guidance is both puzzling and hypocritical. Admittedly, agencies sometimes issue guidance to avoid the quicksand of informal rulemaking. But the law makes clear that without full-dress procedure, guidance can never replace rules and statutes in enforcement actions. Remedying agency overreach in the rare circumstances when enforcement cases are based primarily on guidance is a straightforward legal matter—defendants have only to tell their problems to a judge. Given the acute problems of hollow government and browbeaten civil servants these days, an irate defendant likely need only threaten to sue to compel an agency’s general counsel to back down.

The attack on guidance, like many other aspects of the latest chapter in the ongoing war on regulation, is also hypocritical. A huge swath of regulation was designed and is implemented to protect one kind of business activity from incursion by another. In the same vein, by far, regulated firms that are staunch allies of the deregulators are the largest group benefitting from guidance. Were we able to convene a conference of the leading regulatory counsel and lobbyists for businesses, administer a dose of truth serum, and ask who had requested guidance on behalf of a client during their careers, I doubt more than a handful of people would say they had not.

Hundreds of pleas for guidance have been advanced in the past few ...

Oversight Needed for Maryland's Occupational Safety and Health Division

by Katie Tracy | March 26, 2018
Maryland's Occupational Safety and Health division (MOSH) is struggling to carry out its mission of ensuring the health and safety of Maryland workers, according to CPR's analysis of a mandatory performance report the agency provided to the state legislature late last year. The Maryland legislature mandated the report as a condition of releasing $250,000 of MOSH's FY 2018 funds. Our review of the report and other agency materials leads us to conclude that the agency's limited budget is a key ...

Holding the Line on New Pollution While We Clean Up the Chesapeake Bay

by Evan Isaacson | March 21, 2018
This post is part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort.  A few weeks ago, I discussed why the periodic written "expectations" from the Environmental Protection Agency (EPA) are critically important to the Chesapeake Bay's restoration. These expectations communicate to the state and federal partners in the Chesapeake cleanup effort what they need to do and when in order to implement the coordinated plan of action necessary to reach the ...

Threat from Climate-Induced Spills Goes Beyond Superfund and Toxic Release Inventory Sites

by David Flores | March 19, 2018
This post is the first in a forthcoming series about climate change and the increasing risk of floods releasing toxic chemicals from industrial facilities in Virginia. At the tail end of winter, a succession of "bomb cyclones" and nor'easters has brought fierce winds and surging coastal flooding to the mid-Atlantic and Northeast. These storms remind us of the deepening vulnerability of our coastal and riverfront communities and infrastructure to intensifying extreme weather and flooding. This "freakish" winter weather comes just ...

Blowing the Whistle on Workplace Hazards

by Katie Tracy | March 14, 2018
Workers have the right to speak up about health and safety hazards they encounter on the job. And they should be able to feel comfortable coming forward with their concerns without having to worry that they will be fired, demoted, or in some other way retaliated against for doing so. That is exactly what the drafters of the Occupational Safety and Health Act (OSH Act) had in mind when they included a provision in the 1970 law prohibiting employers from ...

Kneecapping CERCLA Won't Get Rid of Air Pollution from Ag

by Laurie Ristino | March 13, 2018
Who doesn't want to breathe clean air? Unfortunately, a "bipartisan" bill now working its way through the Senate would undermine our ability to address a growing source of air pollution – livestock operations. The so-called Fair Agriculture Reporting Method Act (S. 2421), or the "FARM Act," would amend the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), better known as the Superfund law, to exempt agricultural producers from reporting toxic air emissions. The bill's clever name is a misnomer: it ...

CPR's Heinzerling to House Small Business Committee: Trump's Assault on Safeguards Nothing to Celebrate

by James Goodwin | March 07, 2018
Later this morning, CPR Member Scholar and Georgetown Law Professor Lisa Heinzerling will testify before the House Small Business Committee at a hearing that appears to be aimed at reveling in the Trump administration's assault on regulatory safeguards. In her testimony, Professor Heinzerling will explain why the celebratory mirth and merriment from the committee's majority members and their invited witnesses is misplaced and most likely premature.  As Heinzerling will point out, the major motivating force behind the Trump administration's assault is ...

EPA Isn't the Only Place Where Enforcement Is Being Put on Ice

by Evan Isaacson | March 01, 2018
Recently, the Environmental Integrity Project released a report highlighting the freeze that Administrator Scott Pruitt has placed on the enforcement of the nation's environmental laws. The headline figures are stunning: "Civil Cases for Pollution Violations Decline by 44 Percent and Penalties Down by 49 Percent." And these numbers may understate the situation, as former EPA officials have noted that some of the cases and penalties that the agency has been touting were brought by the previous administration, not Pruitt's EPA.  ...

If Chesapeake Bay Jurisdictions Are Serious About Restoration, They Must Take Climate Change into Account

by David Flores | February 28, 2018
At a workshop on Friday, March 2, representatives of the Chesapeake Bay jurisdictions will meet in Baltimore to make important final decisions about how to address pollution – previously accounted for – from the Conowingo Dam and climate change. Decisions these representatives make about how to address pollution loads through the Chesapeake Bay Total Maximum Daily Load (TMDL) agreement will shape how and whether Bay jurisdictions are able to meet their Bay restoration goals during the crucial third and final phase ...

Trump White House: Safeguards Produce Huge Net Benefits; Also Trump White House: Repeal Them Anyway

by James Goodwin | February 28, 2018
Last week, the Trump administration released the annual Draft Report to Congress on the Benefits and Costs of Federal Regulations. As befitting this auspicious occasion, the administration pulled out all the stops: targeted op-eds from high-ranking administration officials; relevant operatives dispatched to the leading Sunday morning talk shows; and even a televised press conference with the president himself.  Just kidding. They buried it. Quietly. Late on a Friday afternoon. When Congress was away on recess.  And even though it's already ...

The Hill Op-ed: Justice Dept's Enforcement Policies Make Change for the Worse

by Rena Steinzor | February 22, 2018
This op-ed originally ran in The Hill. Attorney General Jeff Sessions has wasted little time portraying himself as the prosecutor-in-chief of street — as opposed to white collar — crime, rejecting this month even a broadly bipartisan effort to reduce sentences for nonviolent crime supported by a coalition that spans the Koch brothers and the NAACP. Civil enforcement has also fallen off, as documented in investigative reporting by The New York Times and others. Both trends will almost certainly continue given ...

Why the Upcoming Release of EPA 'Expectations' for the Bay Plan Is Worth Watching

by Evan Isaacson | February 19, 2018
This post is part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort.  Anyone who's ever been to an organizational retreat can tell you that the worst fate any plan can suffer is to sit on a shelf, unused and collecting dust. The Chesapeake Bay restoration effort is one of the most complex and sophisticated environmental restoration plans ever created. But despite all the resources and energy that have been brought to bear under ...

The Environmental Injustice of Declining Budgets for Water Infrastructure

by Evan Isaacson | February 15, 2018
This year more than most, it bears repeating that a budget is a moral document, or at least that it has moral implications. It's particularly important to remember not just because President Trump's budget is so appallingly skewed in favor of military spending – this looks to be one pricey parade – but also because of the administration's puzzling infrastructure proposal.  It is no surprise that the Trump administration would craft an infrastructure plan heavily tilted toward the shiny objects ...

The Ninth Circuit, the Clean Water Act, and Septic Tanks

by Dave Owen | February 15, 2018
Originally published on Environmental Law Prof Blog. Last week, the Ninth Circuit decided Hawai'i Wildlife Fund v. County of Maui, a case involving Maui County's practice of pumping wastewater into wells, from which the wastewater flowed through a subsurface aquifer and into the Pacific Ocean. The county, according to the court, needed a National Pollutant Discharge Elimination System (NPDES) permit for this practice. It did not matter that the county's wastewater traveled through groundwater on its way to the ocean; ...

CPR's Emily Hammond Testifies About Health and Economic Benefits of Clean Air Act Regulation

by Matt Shudtz | February 14, 2018
It was an early holiday present to the nation's biggest polluters. EPA Administrator Scott Pruitt announced in early December that he was drastically changing the way EPA reviews polluters' compliance – or lack thereof – with the Clean Air Act. Today on Capitol Hill, CPR Member Scholar Emily Hammond will explain that this dramatic shift in policy is a complete abnegation of EPA's statutory responsibilities and, beyond that, puts lives and economic opportunity at risk. Professor Hammond is testifying before ...

Is the Farm "Safety Net" Safe?

by Laurie Ristino | February 08, 2018
This blog post is part of a series on the 2018 Farm Bill. Since the 1930s, Congress has tried to formulate an effective farm “safety net,” oscillating among different schemes in order to protect farmers from the severe economic impacts of the Depression and the Dust Bowl. What started as a New Deal emergency intervention has become an entrenched legislative ritual. Indeed, this perennial Farm Bill debate remains a relic of 20th century policy. It’s designed to perpetuate, not to innovate. The ...

Outer Continental Shelf Shell Game Leaves Florida's Coastline More at Risk for Drilling

by Alyson Flournoy | February 06, 2018
On January 4, the Department of the Interior (DOI) released its draft proposed program for oil and gas leasing on the Outer Continental Shelf (OCS). The proposed plan would end a broad ban on drilling imposed by President Obama and allow leasing and drilling on over 98 percent of the OCS, including the waters off Florida's Atlantic and Gulf coasts. The Eastern Gulf of Mexico is subject to a congressional moratorium until 2022, but the new plan would commence sales ...

CPR Letter Calls On Trump Labor Department to Withdraw Tipping Rule Proposal Due to Suppressed Analysis

by Katie Tracy | February 05, 2018
Today, six CPR Member Scholars and staff members sent a letter to the Department of Labor's (DOL) Wage and Hour Division, calling on the agency to withdraw its proposal to repeal an Obama-era rule aimed at preventing employers from taking workers' hard-earned tips. Last week, Bloomberg Law uncovered a deliberate effort by the DOL to conceal an analysis showing that the proposal would allow business owners and managers to steal and misappropriate billions of dollars – that's "billions" with a ...

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