Does OIRA Live Up to Its Own Standards?

by Daniel Farber | June 11, 2014

OIRA should conduct a cost-benefit analysis of its own activities and explore alternatives to its current oversight methods.

A White House office called OIRA polices regulations by other agencies in the executive branch.  OIRA basically performs the role of a traditional regulator – it issues regulations that bind other agencies, and agencies need OIRA approval before they can issue their own regulations.  Essentially, then OIRA regulates agencies like EPA the same way that those agencies regulate industry.  Issuing regulatory mandates and permits is a very traditional form of regulation, often called command and control.

There are a number of well-known criticisms of command-and-control regulation for being “one size fits all,” too rigid, unable to take advantage of information held by the regulated entities, and economically inefficient.  One might predict that OIRA’s own regulations would suffer from similar flaws.  To the extent that OIRA is trying to overcome these problems in other agencies, it might do well to reexamine its own activities applying the same standards.

OIRA pushes agencies toward greater consideration of the costs of their mandates and toward consideration of alternatives to command and control.  But maybe OIRA should turn some of its scrutiny inward to see how well it lives up to its own goals in its activities.

Executive Order 13563 imposes these requirements on regulations by other agencies:

[A proposed regulation] must promote predictability and reduce uncertainty. It must identify and use ...

Remedying Toxic Exposures: Will CERCLA Continue to Help?

by Robin Kundis Craig | June 11, 2014
On Monday, June 9, 2014, the U.S. Supreme Court decided CTS Corp. v. Waldburger, --- U.S. ---, --- S. Ct. ---, 2014 WL 2560466 (June 9, 2014), a case that posed the seemingly simple legal question of whether the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” also known as Superfund), 42 U.S.C. §§ 9601-9675, preempts state statues of repose. Behind that legal question, however, lies the issue of whether the plaintiffs landowners do or should have a state-law ...

Clean Energy Politics

by Joseph Tomain | June 09, 2014
The EPA’s June 2, 2014 announcement of a Clean Power Plan is momentous. On the surface, its scope, complexity, potential for myriad legal challenges and, not to mention, the difficulty of gathering reliable cost and benefit data, make it so. Mothers should advise their children to grow up to be energy lawyers, not cowboys.  However, what makes this proposed rule more significant are the below the surface core principles and concepts that make the Clean Power Plan a game changer for ...

EPA’s Proposed Power Plant Regs: Solid Legal Footing, Considerable Flexibility

by William Buzbee | June 03, 2014
On June 2, 2014, the United States Environmental Protection Agency issued its much awaited and debated proposed Clean Air Act Section 111(d) regulations to reduce greenhouse gas (GHG) emissions from existing electric utility generating units, colloquially referred to as power plants.  And because the largest GHG emitters in this category are coal burning plants, such plants and linked businesses and coal-intensive jurisdictions all have nervously awaited these proposals.  In an earlier blog analysis, I assessed the statutory language and how ...

CPR's Verchick in Times-Picayune: Governor Jindal, don't sign away our legal claims against BP

by Erin Kesler | June 02, 2014
Today, Center for Progressive Reform Member Scholar Robert Verchick published an op-ed in New Orleans' Times-Picayune entitled, "Gov. Jindal, don't sign away our legal claims against BP." The piece notes: Governor Jindal will probably sign SB469, a bill designed to neutralize the Southeast Louisiana Flood Protection Authority – East's lawsuit against oil and gas companies. But does our governor realize that, if he signs this bill, he may also be killing scores of claims that his own his own state and associated ...

The Legal Basis for the 111(d) Rules

by Daniel Farber | June 02, 2014
Megan Herzog has done a great job of explaining the background of the rules and summarizing the proposal in her blog posts.  I just wanted to add a quick note about how EPA has structured its rules in light of possible legal challenges.  The fundamental issue facing EPA is how to define the “best system” for reducing carbon emissions.  Is it limited to technological upgrades at individual emitters?  Or can it be broader, and if so, how broad?  Industry is sure ...

D.C. Circuit Vacates FERC Smart Grid “Demand Response” Rule

by Joel Eisen | May 30, 2014
Last Friday (May 23), in Electric Power Supply Association v. FERC, a D.C. Circuit panel split 2-1 and vacated Order 745, a Federal Energy Regulatory Commission (FERC) rule designed to promote “demand response” (DR). DR is a rapidly growing and valuable means of reducing electricity demand, thereby benefiting consumers and the environment. It is also an important part of the Smart Grid, in which smart meters and devices that communicate with one another and energy service providers can further promote these goals. ...

CPR Scholar William Buzbee testifies at House Hearing on EPA's Waters of the US Rule

by Erin Kesler | May 29, 2014
Center for Progressive Reform Member Scholar and Professor of Law and Emory University School of Law William Buzbee will be testifying today at a House Committee on Small Business Administration Hearing entitled, “Will the EPA’s ‘Waters of the United States’ Rule Drown Small Businesses?” According to Buzbee’s testimony: The purpose and logic of the new “waters” proposed regulations, in brief:        These proposed regulations and a massive accompanying science report referenced and summarized in the Federal Register notice are an ...

The EPA Addresses Residual Risk for Hazardous Air Emissions at Refineries

by Victor Flatt | May 28, 2014
On May 14, 2014, the EPA proposed new rules to control “residual risk” from hazardous air emissions (such as from benzene) at the nation’s petroleum refineries. The Clean Air Act requires the EPA to calculate whether or not residual risk to human health exists after the agency has put Maximum Achievable Control Technology (MACT) in place to control hazardous air emissions.  Studies have long shown residual risk to the public after MACT was put in place at refineries, and this ...

Regulatory Tsunami? What Regulatory Tsunami?

by James Goodwin | May 27, 2014
Sometime last Friday—the Friday before the Memorial Day holiday weekend—the Obama Administration quietly issued the Spring 2014 Regulatory Agenda.  It’s becoming something of a tradition for the Administration to release this semiannual document on classic “take out the trash” news days in this fashion.  The Fall 2013 Regulatory Agenda was similarly released to whatever the opposite of fanfare is on the day before Thanksgiving, while the Spring 2013 Agenda came out the day before Independence Day. It’s hard to blame ...

The Real

by Rena Steinzor | May 22, 2014
The federal regulatory system is in crisis. For the past several decades, a damaging set of mandates has continued to pile up on the books—mandates that threaten to stifle critical progress and undermine the nation’s ability to compete in the world economy. Even today, out-of-touch policymakers are attempting to add still more of these mandates, without regard to their direct, indirect, and cumulative costs to society. One might say that we are facing a tsunami, a flood, or even an ...

State Energy Policy and the Commerce Clause: Spotlight on Colorado and Minnesota

by Alexandra Klass | May 22, 2014
Within the past month, two federal district courts—one in Colorado and one in Minnesota—have issued important decisions on the constitutionality of state clean energy policies. Both cases raised the same legal issue, namely, whether the state laws in question regulate extraterritorially in violation of the dormant Commerce Clause of the U.S. Constitution. But the courts reached different results in each case and, more importantly, the Minnesota and Colorado policies reviewed by each court were quite different from each other even ...

CPR Member Scholars to Congress: Judicial Review Provisions of CFTC Reauthorization Bill Need Another Look

by James Goodwin | May 20, 2014
Yesterday, CPR Member Scholars sent a letter to House Representatives about their concerns with Section 212 of H.R. 4413, the Consumer Protection and End-User Relief Act.  This provision would add a new Section 24 to the Commodity Exchange Act, establishing specific requirements for judicial review of rules adopted by the Commodity Futures Trading Commission (CFTC).  H.R. 4413 is on the short list for a floor vote in House. As the letter explains, several aspects of Section 212 “raise significant problems.”  ...

EPA’s Long-Delayed Cooling Water Rule Finally Out: Industry Wins Again; Fish (and the Rest of Us) Lose

by Amy Sinden | May 20, 2014
The EPA issued its long-awaited cooling water rule yesterday and the score appears to be:  Industry – home run; Fish – zero.   Which is to say, it’s bad news not just for the fish but also for all of us who depend on the health of our aquatic ecosystems – which is to say, everyone.   This is the rule that governs the design standards for the massive cooling water intakes at power plants and other large industrial facilities that ...

CPR's Catherine O'Neill in Seattle Times: Protect water and health by updating state’s fish-consumption rate

by Erin Kesler | May 19, 2014
Today, the Seattle Times published an op-ed by CPR scholar and University of Seattle law professor Catherine O'Neill with University of Washington professor and public health officer Frank James entitled, "Protect water and health by updating state’s fish-consumption rate." According to the piece: GOV. Jay Inslee is currently considering how much fish Washingtonians may safely consume — a question that will, in turn, determine how protective our state’s water-quality standards should be. As professionals who have worked for two decades with ...

Mint Press News: Americans Deserve Real Toxic Chemical Reform

by Erin Kesler | May 16, 2014
Center for Progressive Reform Scholar Sidney Shapiro and Asbestos Disease Awareness Association President Linda Reinstein published a piece in Mint Press News on toxic chemical reform legislation. They note: Imagine a chemical that every public health organization in the United States and around the world knows to cause cancer and a host of other illnesses. You might think that such a chemical would probably be banned from commercial use in the United States, or at least not allowed to be used in ...

Supreme Court’s Revival of the Transport Rule Means a Cleaner Chesapeake Bay

by Anne Havemann | May 08, 2014
Air pollution is a complex problem. For one, it does not adhere to state boundaries; a smokestack in one state can contribute to pollution problems in another, even a downwind state hundreds of miles away. What’s more, air pollution’s impacts are not confined to just the air. What goes up must come down, and air pollutants are eventually deposited on the ground where they are washed into rivers, lakes, and streams.  The Environmental Protection Agency (EPA) has tried for decades to ...

New NAS report breathes life into EPA’s IRIS program

by Matt Shudtz | May 08, 2014
The National Academies’ National Research Council released its long-awaited report on IRIS this week, and the results are good for EPA.  The report praises the IRIS program and its leadership, including Drs. Olden and Cogliano, for making great strides to improve how IRIS assessments are developed. To get a real appreciation for how positive this report is, it’s important to put it in context.  In 2011, a different NAS/NRC committee led by the same chairperson went out of its way ...

Deconstructing Regulatory Science

Wagner | Jun 19, 2018 | Regulatory Policy

Agency U-Turns

Farber | Jun 18, 2018 | Regulatory Policy

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