CPR's Shapiro Testifies in Congress on 'Agency Capture' by Industry

by Ben Somberg | August 03, 2010

The Minerals Managements Service's coziness with an industry it was supposed to be monitoring has brought attention back to an all-too-pervasive problem: regulatory agencies becoming "captured" by the regulated industries.

This morning the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts is holding a hearing on “Protecting the Public Interest: Understanding the Threat of Agency Capture.” CPR Member Scholar Sidney Shapiro is testifying about the nature and extent of agency capture, and what Congress can do about it. (There's also a news release.)

Shapiro says there are three preliminary types of capture:

  • Political Capture occurs when an agency fails to protect the public and the environment because regulators friendly to industry block regulatory efforts or do not enforce the laws and regulations then in effect.
  • Representational Capture occurs when industry representatives regularly appear before an agency, offering detailed comments and criticisms, while the agency seldom, if ever, hears from public interest groups or members of the public. Empirical studies have repeatedly shown that this imbalance is significant.
  • Sabotage Capture occurs when regulatory critics create roadblocks that slow or prevent regulation even in future administrations that seek to protect the public and the environment. This type of capture is more subtle and difficult for the public to perceive, and is most prominently exhibited today as the defunding of the regulatory agencies and the politicization of rulemaking by the White House. 

 Shapiro presents four recommendations for Congress:


State Coal Ash Regulation at Work

by Ben Somberg | July 29, 2010
You may have read of a letter sent by 31 Representatives to the EPA today to complain about coal ash regulation. I wasn't planning on dignifying it with a response, but sometimes something just calls out for a little highlighting. Like when the members write: "States have been effectively regulating CCRs" That's actually a case they want to be on record making? Really? View of the TVA Kingston Fossil Plant fly ash spill. Photo used under Creative Commons by Brian ...

The New Consumer Protection Agency and Bureaucratic Reality

by Thomas McGarity | July 28, 2010
Now that Congress has passed legislation creating a new Consumer Financial Protection Bureau in the Treasury Department, attention has shifted to how the Obama Administration will implement the new law. The issue of who President Obama should appoint to head the new agency is now front and center. Consumer groups and many members of Congress believe that Professor Elizabeth Warren, who came up with the idea for a consumer protection agency for the financial sector and has been an aggressive ...

EPA's New Guidance on Considering Environmental Justice in Rulemaking a Welcome First Step

by Catherine O'Neill | July 27, 2010
The EPA released a guidance document on Monday that promises to integrate environmental justice considerations into the fabric of its rulemaking efforts. Titled the Interim Guidance on Considering Environmental Justice During the Development of an Action, EPA’s Guidance sets forth concrete steps meant to flag those instances in which its rules or similar actions raise environmental justice concerns. Specifically, the Guidance directs agency staff involved in rulemaking to “meaningfully engage with and consider the impacts on” communities of color, low-income communities, indigenous ...

Auto Safety Bill Takes Some Bruises in the Senate; Automakers Try for More

by Lena Pons | July 27, 2010
The Motor Vehicle Safety Act of 2010 (H.R. 5381/S. 3302), the primary legislation on the table in response to the Toyota unintended acceleration fiasco, went through the committee process in the House and Senate earlier this summer. The bills, as introduced, included some tough provisions to respond to gaps exposed by the Toyota episode. Among important reforms included in the bills currently: More public access to NHTSA’s early warning information database; standards for accelerator control and brake override; a standard ...

Using Disclosure as a Smokescreen: How Behavioral Economics Can Deflect Regulation

by Daniel Farber | July 26, 2010
Cross-posted from Legal Planet. A key figure in behavioral economics recently issued a warning about over-reliance on its findings.  In a NY Times op. ed, Dr. George Lowenstein raised questions about some uses of behavioral economics by government policymakers: As policymakers use it to devise programs, it’s becoming clear that behavioral economics is being asked to solve problems it wasn’t meant to address. Indeed, it seems in some cases that behavioral economics is being used as a political expedient, allowing ...

Climate Change: The Ball's Bounced Back to the States, EPA, and DOE

by Alice Kaswan | July 23, 2010
After endless negotiations and draft bills, the Senate has given up on climate legislation that would place any sort of cap on the nation’s emissions, and will likely settle for a few select energy initiatives. Congress’ failure to act is galling. Hand wringing is fully justified. But what now? State and local governments have become accustomed to federal paralysis, and will, I hope, continue to march on notwithstanding the tight lock that certain vested fossil fuel interests and industry have clamped on congressional action. ...

At Thirty Five, Endangered Species Treaty Has Mixed Record

by Yee Huang | July 23, 2010
July 1 marked the 35th anniversary of the effective date entry-into-force of the Convention on International Trade in Endangered Species (CITES). While CITES is among the stronger international conventions, its strength is diminished by a lack of an enforcement mechanism and political maneuverings. The arrests and cargo seizures may not make headlines often, but international trade in endangered species is one of the most valuable illegal markets, behind drugs but potentially comparable to arms and human trafficking. According to a ...

Big Chicken Loses Round One in Groundbreaking Water Pollution Case

by Shana Campbell Jones | July 22, 2010
Thanks to a strong ruling from a federal judge in Baltimore Wednesday, large poultry companies are one step closer to being held accountable for the pollution (manure) the small farms that grow chickens for them generate. Responsibility: it’s not just for the little guys anymore. In March, several environmental groups in Maryland sued Perdue Farms, Inc. and Hudson Farm, a chicken farm that raises Perdue’s chickens, alleging violations of the Clean Water Act. (I blogged earlier about the political brouhaha ...

Finally, a National Ocean Policy

by Holly Doremus | July 21, 2010
Cross-posted from Legal Planet. Last year, I noted that the interim report of the Interagency Ocean Task Force appointed by President Obama marked a promising step toward a national ocean policy. Now the Task Force has issued its final recommendations, which the President promptly began implementing. A national ocean policy has been a long time coming. Back in 2003, the Pew Oceans Commission called for a new “unified national ocean policy based on protecting ecosystem health.” A year later, the ...

Miner Safety and Health Act Faces Committee Vote Today

by Matt Shudtz | July 21, 2010
Just before the July 4 recess, Representative George Miller, Chairman of the House Education and Labor Committee, introduced the Miner Safety and Health Act of 2010. Recent explosions at Massey Energy’s Upper Big Branch Mine, Tesoro’s Anacortes (WA) refinery, BP’s Deepwater Horizon drilling platform, and U.S. Steel’s coke oven in Clairton (PA), highlight the life-threatening hazards that American workers face on a daily basis. Despite these hazards—and the myriad other less serious or even chronic hazards that don’t make headlines—workers continue to ...

Utilities-Only Carbon Cap

by Daniel Farber | July 16, 2010
Cross-posted from Legal Planet. According to Thursday's NY Times, Senate Democrats have agreed to include a utilities-only cap-and-trade program in their energy bill.  That’s certainly not ideal — it excludes a large number of industrial sources, which limits its environmental effectiveness.  The utilities-only program will also be less economically efficient, since it precludes taking advantage of possible low-cost reductions available in the industrial sector. Opinions will always differ about how much you can compromise before the game isn’t worth the ...

Some Toyota Context

by Ben Somberg | July 15, 2010
The last time the WSJ attempted a big scoop on the Toyota story (attempting to discredit the Prius driver case in California), the article did not hold up well. This week's story ("Early Tests Pin Toyota Accidents on Drivers") has caught attention, and a response from NHTSA: the agency has "several more months of work to do" before it announces conclusions of its investigation. From the response by Safety Research & Strategies Inc.: Recall that Toyota reported to Congress in ...

Dangerous Work Conditions For Migrant Women in Maryland Crab Industry, Report Says

by Ben Somberg | July 14, 2010
A report released in Washington this morning highlights "The Hidden Struggles of Migrant Worker Women In The Maryland Crab Industry." The paper, by Centro de los Derechos del Migrante, Inc. and the International Human Right Law Clinic at American University Washington College of Law, is focused mostly on immigration policy issues (a little outside our purview), but I wanted to note the section on worker safety. The report looks at the hundreds of Mexican women who travel every year to ...

OIRA's Fuzzy Math on Coal Ash: A Billion Here, a Billion There

by Rena Steinzor | July 13, 2010
This post was written by CPR President Rena Steinzor and Michael Patoka, a student at the University of Maryland School of Law and research assistant to Steinzor. Last October, the EPA proposed to regulate, for the first time, the toxic coal ash that sits in massive landfills and ponds next to coal-fired power plants across the nation. The 140 million tons of ash generated every year threaten to contaminate groundwater and cause catastrophic spills, like the 1-billion-gallon release that devastated ...

Interior Hits the Pause Button Again

by Holly Doremus | July 13, 2010
Cross-posted from Legal Planet. As he had promised, Interior Secretary Ken Salazar on Monday issued a new decision memorandum suspending certain deepwater drilling operations.Monday’s decision replaces the moratorium that the federal District Court in New Orleans enjoined on June 22, and which the Fifth Circuit declined to reinstate last week. As I made clear in my post on the Fifth Circuit decision, I think both the District Court and the Fifth Circuit were wrong on the first moratorium. Even if ...

Stay Denied in Appeal of Offshore Moratorium Decision

by Holly Doremus | July 09, 2010
Cross-posted from Legal Planet. A three-judge panel of the Fifth Circuit heard arguments Thursday on the Obama administration’s request that it stay the District Court’s injunction of the 6-month deepwater oil development moratorium, and by a 2-1 vote quickly rejected the request. The moratorium halted any new drilling, and the granting of any new permits for drilling, in depths beyond 500 feet based on the Secretary of Interior’s finding that “deepwater drilling poses an unacceptable threat of serious and irreparable ...

EPA Threads the Needle with New CAIR Rule

by Victor Flatt | July 08, 2010
On Tuesday, the EPA released its long awaited rule to replace the Bush era Clean Air Interstate Rule, invalidated by the DC Circuit in 2008’s North Carolina v. EPA. There are many things that could have been different or improved, but given the EPA’s need to get a rule out quickly to replace the existing rule, they have done a good job of addressing the flaws of the earlier rule and getting something in place. The main problem with the previous ...

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