The human cost of regulatory ossification

by Thomas McGarity | November 06, 2013

Tomorrow, a subcommittee of the Senate Judiciary Committee chaired by Senator Richard Blumenthal (D. Connecticut) hosts a Hearing on the consequences of excessive regulatory “ossification” entitled, “Justice Delayed II: The Impact of Nonrule Rulemaking on Auto Safety and Mental Health.”  I will be testifying at that hearing on the effects of agencies’ moving to more informal rule-making procedures as a way to avoid the burdensome analytical and internal review requirements that currently make it so difficult for them to promulgate rules.

During the 1980s and 1990s, the rulemaking process became increasingly rigid and cumbersome as presidents, courts and Congress added an assortment of analytical requirements to the simple rulemaking model and as evolving judicial doctrines obliged agencies to take great pains to ensure that the technical bases for rules were capable of withstanding judicial scrutiny under what is now called the “hard look” doctrine of judicial review.  More than twenty years ago, Professor E. Donald Elliott, himself a former General Counsel of the Environmental Protection Agency, referred to this phenomenon as the "ossification" of the rulemaking process, and I wrote an article based on my study for the Carnegie Commission describing the ossification phenomenon, identifying some of its causes, and suggesting some ways to “de-ossify” the rulemaking process. 

My ...

Alt v. EPA: EPA’s control over CAFOs shrinks again

by Anne Havemann | November 05, 2013
Lois Alt is a 61-year-old grandmother who sued EPA in federal court arguing that her large chicken farming operation is exempt from Clean Water Act (CWA) permitting requirements. On October 23, the judge ruled in her favor in an alarming decision that could mean thousands of other large industrial farming operations do not need permits.  The case began when EPA found Ms. Alt in violation of the CWA for discharging without a permit. EPA ordered her to apply for one ...

CPR Scholars: ACUS’ recommendations to OIRA fall short

by Amy Sinden | November 05, 2013
Since the Reagan Administration, federal agencies have been required by Executive Order to send their major rules to the White House’s Office of Information and Regulatory Affairs (OIRA) for review before releasing them to the public. OIRA review consists of, among other things, ensuring that agencies subject their rules to cost-benefit analysis to make sure the dollar value of their costs to industry exceeds the dollar value of the benefits they confer on the public. It was no surprise under the ...

Senate Republicans against DC Circuit Court nominees: talking through their hats

by Sidney Shapiro | October 30, 2013
This week, it was reported that Senate Democrats plan to force a vote to confirm one judicial nominee to the D.C. Circuit Court of Appeals if Republican Senators continue to block the nominee’s confirmation. Patricia Ann Millett, who has worked for Democratic and Republican administrations in the past, is the contested candidate.  Although the circuit court has three vacancies, the Republicans oppose a vote because they say the D.C. Court of Appeals has too many judges. Senator Jefferson Sessions, for example, ...

The coal ash rule rises like the phoenix: Judge Reggie Walton orders EPA to get the rule back on track within 60 days, congratulations to Earthjustice and its clients

by Rena Steinzor | October 29, 2013
Congratulations to our friends at Earthjustice and their clients for a tremendous victory in federal district court today. Judge Reggie Walton (a George W. Bush appointee) ordered the Obama Administration to provide a schedule for regulating coal ash within the next 60 days.   This epic battle now shifts back to the White House and Congress where nearly hysterical electric utilities that depend on coal-fired power plants will sweep in, aided by some very twisted economics from strong regulation’s staunch nemesis, the ...

New CPR Issue Alert on toxics: reform must help, not hinder states and victims’ rights

by Sidney Shapiro | October 28, 2013
In the United States, the framework for safeguarding people and the environment against the dangers of toxic chemicals comprises three mutually reinforcing legal systems: federal regulation, state and federal civil justice systems, and state regulation. Each part of the framework however, has been substantially weakened — the civil justice systems by years of tort "reform," and federal and state regulatory systems by outdated laws and an ongoing campaign by industry and its allies against protective regulation.  Congress is now considering competing ...

White House changes to food import rule weaken consumer protections

by Michael Patoka | October 25, 2013
Last Friday, the FDA posted the revisions the White House Office of Information and Regulatory Affairs (OIRA) made to two food safety rules drafted by the agency two years ago. The proposed rules were issued under the Food Safety and Modernization Act, which Congress passed in the wake of widespread food safety disasters. As we’ve mentioned in this space before, OIRA is the regulatory review body within the White House that frequently holds onto agency rules for longer than the 120-day ...

OSHA’s new tools for addressing chemical hazards could bolster enforcement

by Matt Shudtz | October 24, 2013
Today OSHA announced two new web-based resources designed to help employers eliminate chemical hazards in the workplace. Both the toolkit for identifying less-hazardous substitutes and the annotated exposure limits table are useful informational resources designed to promote voluntary action by conscientious employers and informed demands by workers and their advocates. But OSHA has to deal with both the “high road” and the “low road” employers, so using these new tools in enforcement proceedings is a necessary adjunct to voluntary employer efforts. With some ...

Mass. v. EPA bears fruit for environmental petitioners

by Holly Doremus | October 23, 2013
Court rules that EPA must decide if new water quality standards are needed to protect the Gulf of Mexico A US District Court in Louisiana recently ruled, in Gulf Restoration Network v. Jackson, that EPA must decide whether it has to impose new water quality standards for nutrient pollution in the Mississippi River watershed. Although that might seem far afield from the Supreme Court’s greenhouse gas emissions decision in Massachusetts v. EPA, in fact it’s a direct descendant.  The Administrative Procedure ...

SBA’s Office of Advocacy wants even more time to review OSHA’s silica proposal

by Matt Shudtz | October 23, 2013
SBA’s Office of Advocacy has added its voice to the chorus of business interests who want OSHA to delay publication of a new rule that would protect workers from the deadly effects of silica exposure. In a letter to OSHA chief David Michaels, the top lawyers from the Office of Advocacy claim that it will be “nearly impossible” for small business representatives to review OSHA’s proposal and prepare the comments and testimony due in early December. To be sure, the rulemaking ...

USDA to poultry plant workers: no promise we’ll address line speed hazards

by Celeste Monforton | October 21, 2013
“Es ridículo,” was the reaction of a poultry plant worker when he heard of the USDA’s proposal to “modernize” poultry slaughter. The agency’s January 2012 proposal (77 Fed Reg 4408) would allow companies to increase assembly line speeds from about 90 to 175 birds per minute, and remove most USDA inspectors from the poultry processing line. The Obama Administration should have heard the loud and clear opposition from civil rights, food safety, public health and the workers’ safety communities to the USDA’s ...

Myths and facts surrounding the Supreme Court’s review of GHG emission permitting

by Bill Funk | October 17, 2013
On Tuesday, the Supreme Court granted six of the nine petitions challenging a DC Circuit Court of Appeals ruling in favor of the EPA’s rules regulating greenhouse gases under the Clean Air Act. However, the Court granted review of only one aspect of the various petitions: whether the EPA’s use of vehicle emission standards to regulate greenhouse gases triggers permitting requirements for stationary power sources that contribute to carbon pollution. The regulations at issue implement the Clean Air Act’s Prevention ...

Cook That Chicken Because You’re on Your Own

by Rena Steinzor | October 17, 2013
Salmonella outbreak reveals we need more, not fewer, cops on the food safety beat.  Some 317 victims of salmonella poisoning from Foster Farms chicken sold in 20 states have learned firsthand why we need government.   Who knows how much faster the threat would have been contained if Centers for Disease Control (CDC) experts had been walking their usual beat, coordinating state investigators and working frantically to discover the origins of the virulent strain of salmonella that has already hospitalized 42 ...

What is a “Small Business,” Exactly? Two Concepts from OSHA’s Silica Proposal

by Matt Shudtz | October 17, 2013
OSHA’s proposed new silica standards promise to improve the health and safety of more than two million workers across the U.S. By reducing exposures to respirable silica dust, the standards are expected to save 700 workers’ lives and prevent 1,600 new cases of silicosis every year. Of course, these impressive benefits come at a cost to employers and those costs will be a major talking point for the business community as OSHA’s proposal moves through the rulemaking process. One argument that we’re sure ...

Regulating Existing Power Plants Under Clean Air Act 111(d) (Part I): The CAA's Language & Structure

by William Buzbee | October 15, 2013
In late September, the EPA proposed regulation of new power plants’ greenhouse gas emissions (GHGs) under the Clean Air Act’s “New Source Performance Standards” (NSPS) provisions. Now an often little noticed follow-on provision—Section 111(d)--- is suddenly in the spotlight. Section 111(d) requires regulation of existing sources that are in categories of polluters subject to NSPS regulation. President Obama, EPA, industry, environmental groups, and states have all entered the fray about what Section 111(d) requires and allows.  This issue presents several important choices and ...

Denial As a Way of Life

by Daniel Farber | October 11, 2013
As it turns out, many of the same people who deny that climate change is a problem also deny that government default would be a problem.  No doubt there are several reasons: the fact that Barack Obama is on the opposite side of both issues; the general impermeability of ideologues to facts or expert opinion; a general suspicion of elite views.  But I’d like to suggest that there is also a deeper belief about the invulnerability of systems to outside ...

The Government Shutdown and the EPA: The Environmental Dangers of Congressional Recklessness

by Erin Kesler | October 09, 2013
It can be read in full here. According to Mintz: The indefinite close down of EPA’s operations poses major risks, some imminent and others long term, to the health and natural environment of millions of Americans. The EPA’s enforcement of existing regulations provides vital protections against the emission of toxic air and water pollutants and the contamination of public drinking water supplies. The EPA works to prevent the exposure of school children to asbestos, the ingestion of toxic lead paint ...

EO 12866 20th Anniversary: Roundup Edition

by Erin Kesler | October 08, 2013
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Deconstructing Regulatory Science

Wagner | Jun 19, 2018 | Regulatory Policy

Agency U-Turns

Farber | Jun 18, 2018 | Regulatory Policy

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