Antibiotic Resistance and Agency Recalcitrance

by Lisa Heinzerling | February 06, 2013

Eighty percent of the antibiotics used in this country are given not to humans, but to animals destined for the human food supply.  Most of these antibiotics are given to the animals not for the purpose of treating active infections, but for the purposes of promoting growth and preventing infection in the microbe-rich environment of the modern factory farm.  For over 40 years, the Food and Drug Administration (FDA) has been collecting evidence that this agricultural practice contributes to the development of antibiotic-resistant infections in the human population. Based on such evidence, in fact, the agency proposed to withdraw its prior approvals for two antibiotics used in animal feed due to the risks they posed to human health. The agency promised to hold hearings on the matter. That was over 35 years ago. On Friday, the future of this issue will be debated in oral arguments in a key case before the Second Circuit Court of Appeals.

In the last 35 years, the FDA has continued to accumulate evidence of the link between administering subtherapeutic doses of antibiotics to food animals and the development of antibiotic-resistant infections in the human population. Indeed, the agency itself has repeatedly acknowledged the link between herd- and flock-wide administration of antibiotics to food animals and the development of antibiotic-resistant disease in humans. But still it has done nothing to take the drugs off the market.  Not surprisingly, after watching the FDA sit still for ...

The Precarious Legality of Cost-Benefit Analysis

by Daniel Farber | February 05, 2013
Cross-posted from Legal Planet. Cost-benefit analysis has become a ubiquitous part of regulation, enforced by the Office of Management and Budget. A weak cost-benefit analysis means that the regulation gets kicked back to the agency. Yet there is no statute that provides for this; it’s entirely a matter of Presidential dictate. And reliance on cost-benefit analysis often flies in the face of specific directions from Congress about how to write regulations. There are a few exceptions, such as regulations involving ...

Climate Progress Possible With Energy Efficiency Standards for Appliances -- Under Laws Congress Already Passed

by Alexandra Klass | February 04, 2013
President Obama's focus in his second inaugural address on the need to address climate change was welcome after many months of near silence on this critical issue. While tackling climate change will require significant efforts limiting emissions from power plants, automobiles, and other sources, the President has recognized in the past that improving energy efficiency in general, and setting stricter energy efficiency standards for appliances specifically, can have a major impact on reducing both U.S. greenhouse gas emissions and consumer ...

CPR Report: Small Business Administration's Office of Advocacy Dances to Big Business's Tune

by Sidney Shapiro | January 29, 2013
Congress created the Office of Advocacy (Office) of the Small Business Administration (SBA) to represent the interests of small business before regulatory agencies.   It recognized that, unlike larger firms, many, if not most, small businesses can’t afford to lobby regulators and file rulemaking comments because of the expense involved.  The Office was supposed to fill this gap by ensuring that agencies account for the unique concerns of small businesses when developing new regulations.  Instead, as new reports from the Center ...

Executive Review of Regulation in Obama's Second Term

by Matthew Freeman | January 28, 2013
CPR Member Scholar David Driesen of Syracuse University has an op-ed in the January 28 Syracuse Post-Standard making the case that the President should reinvigorate his regulatory agenda, in part by diminishing the Office of Information and Regulatory Affairs' power to stifle regulations. He puts the argument in the context of the pressing need for action on climate change, writing: Obama should put an end to obstructionist OIRA review in light of the urgency of climate disruption and the failures this review ...

Exempting Climate Mitigation from OIRA Review

by David Driesen | January 24, 2013
Cross-posted from RegBlog. Nobody seems to have noticed, but the Center for Progressive Reform (CPR) recently recommended abolition of review by the Office of Information and Regulatory Affairs (OIRA) based on cost-benefit analysis (CBA). Its report on recommendations for the second Obama Administration made this proposal the sixth item in a list of seven executive orders that Obama could issue with a "Stroke of the Pen" (from the report’s title). In place of CBA-based review, which has often stymied or delayed needed environmental ...

Climate Economics: The State of the Art

by Frank Ackerman | January 23, 2013
Cross-posted from Triple Crisis. Climate science paints an ever-more-detailed picture: irreversible, catastrophic events are becoming increasingly likely as greenhouse gas emissions continue to rise. Climate economics, particularly in its policy applications, lags behind: leading models and analyses frequently ignore the extreme risks and the intergenerational aspect of the problem – and rely on simplistic and dated interpretations of the underlying science. Yet the state of the art has progressed rapidly, in the research literature on climate economics as well as ...

NEPA Section 102(1): A Useful (Yet Rarely Used) Tool for Public Interest Environmental Lawyers

by Joel Mintz | January 22, 2013
The National Environmental Policy Act of 1969 (NEPA) was one of the first environmental statutes of the modern era. Best known for its environmental impact statement (EIS) requirement, and for establishing the Council on Environmental Quality, NEPA has been the basis for numerous lawsuits challenging federal government projects that will or may have an adverse impact on the human environment. Despite that fact, however, one brief, yet potentially crucial, portion of the statute has been all but overlooked by environmental ...

A Victory for American Coal Miners; A Small Measure of Justice for the Victims of the Upper Big Branch Mine Disaster

by James Goodwin | January 18, 2013
Yesterday, the Mine Safety and Health Administration (MSHA) finalized the long overdue Pattern of Violations rule, a measure that will enhance the agency’s enforcement authority by making it easier for the agency to hold scofflaw mines strictly accountable for repeatedly and needlessly putting their workers at risk of chronic illness, severe injury, or even death.  The deterrent effect of this enhanced enforcement authority will discourage delinquent mine operators from cutting corners on health and safety, a development that will produce ...

Ken Salazar's Mixed Legacy

by Dan Rohlf | January 17, 2013
Secretary of Interior Ken Salazar will leave a decidedly mixed legacy from his four years at the helm of the federal department responsible for protecting many of America’s vast open spaces, treasured parks, and disappearing wildlife.  Salazar’s Interior Department enjoyed some high-profile successes and on occasion took action to better protect important resources. It reached a multi-billion dollar settlement in the long-running and contentious Cobell litigation, a massive class action suit by Indian tribal members over government mismanagement of revenue ...

FDA's New Produce Safety Rules: Somewhat Less Than Meets the Eye

by Thomas McGarity | January 14, 2013
When I teach my environmental law and food safety law students how to go about ascertaining the meaning of implementing regulations, I tell them to start with the sections of the regulations devoted to definitions and exemptions.  Quite frequently the most hard-fought controversies during the rulemaking process through which the agency promulgated the regulations were over the definitions and exemptions.  That certainly seems to be true in the case of the long-awaited Food and Drug Administration’s (FDA) proposed “Standards for ...

CPR Report: Rise in Contract Labor Brings New Worker Safety Threats, Demands New Government Policies in Several Dangerous Industries

by Ben Somberg | January 11, 2013
Just how accountable is an employer to an employee if the employee is only working for one day? In areas from construction to farm work, warehouse labor to hotel housekeeping, contingent work is growing or already common. Rather than hire permanent, full-time employees directly, many employers hire workers indirectly through 3rd party agencies, or on contracts as short as a day. Too often, workers in these fields see little job security, low wages, minimal opportunities for advancement, and, all too ...

An Important Stormwater Case -- and It's Not the One You're Thinking of

by Dave Owen | January 10, 2013
Cross-posted from Environmental Law Prof Blog. Last week, a federal district court in Virginia decided an urban stormwater case that may ultimately have far more significance than the Supreme Court’s more widely-watched decision in Los Angeles County Flood Control District v. Natural Resources Defense Council.  The case is Virginia Department of Transportation v. U.S. Environmental Protection Agency, and it involves a challenge to a proxy TMDL for Accotink Creek, a Potomac River tributary in northern Virginia.  On its face, that statement may not sound ...

How the LA County Flood Control District MS4 Case SCOTUS Loss is a Win for the Clean Water Act

by William Buzbee | January 08, 2013
The Supreme Court ruled today that the 9th Circuit committed a legal error in holding the Los Angeles County Flood Control District liable for violations of its Clean Water Act (CWA) “municipal separate storm sewer system” (or MS4) pollution discharge permit. The suit, Los Angeles County Flood Control District v. Natural Resources Defense Council, had been initiated by NRDC and allied environmental groups, and its victory below was reversed.   A loss for the environment? Actually, the careful and narrow Supreme Court ruling ...

EPA on the Right Track for Addressing Endocrine-Disrupting Chemicals, but Should be Wary of Potential Detours

by Aimee Simpson | January 08, 2013
A year ago this month, CPR published a white paper that laid out a two-phased action plan for federal agencies to take some critical steps toward protecting the public from Bisphenol-A (BPA). The report provided both short-term and long-term action items for the EPA, FDA, and OSHA that could establish stronger safeguards, risk assessment practices, and warning mechanisms for families and consumers concerning BPA and other endocrine-disrupting chemicals.  We said an underlying requirement for both short-term and long-term action items ...

The Long Goodbye: On Seeing the Sundarban Islands

by Robert Verchick | January 04, 2013
The Ganges River begins at the foot of the Gangotri Glacier in the Himalayas and culminates at the Sundarbans Delta, a massive sprawl of swamps, lakes, and scores of islands. (Find an earlier post on the Ganges here.) It’s the largest river delta in the world—home to endangered Bengal tigers, miles of mangroves, and nearly 12 million people (4.5 million on the Indian side and 7.5 million on the Bangladeshi side). A student of the Mississippi River Delta, I had ...

Using Executive Orders to Move the Agenda

by Matthew Freeman | December 27, 2012
CPR's Rena Steinzor and Amy Sinden have an op-ed in this morning's Baltimore Sun urging President Obama to make aggressive use of Executive Orders leading to regulation action to protect health, safety and the environment.  They write: Barack Obama's ambitions are clear. He came to office in 2009 on the strength of a far-reaching, progressive agenda that included resurrecting the economy, rebuilding the American middle class, ending one war, winning another, stopping the Bush-era tax giveaways to the rich, fixing ...

D.C. Circuit Denies Rehearing in Endangerment Case

by Daniel Farber | December 21, 2012
Cross-posted from Legal Planet. Six months ago, the D.C. Circuit upheld EPA’s finding that greenhouse gases endanger human health and welfare, triggering coverage under the Clean Air Act.  On Thursday, the full court denied rehearing to the three-judge panel’s decision.  There were only two dissents, which obviously were hoping to set the stage for a cert. petition to the Supreme Court.  The dissents provide a preview of the kinds of arguments that will be made to the Supreme Court. One key point ...
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