Two years ago tomorrow, Saturday, EPA sent a seemingly modest idea over to the White House for a quick review. The agency wanted to establish a simple list of “chemicals of concern.” These weren’t chemicals that were necessarily going to be subject to bans or other restrictions, but they present significant enough hazards and are distributed widely enough in the environment to raise some eyebrows among EPA’s toxics staff. Among the chemicals that were being proposed for inclusion on the list: phthalates, PBDEs, and BPA. The rule wasn’t expected to cost much, but EPA sent it to the White House anyway, probably because this was the first time the agency would use a particular statutory authority Congress first granted in 1972. But two years after EPA sent the proposal to the White House, it is still sitting on a desk somewhere at OIRA, and I think it’s time to say it: OIRA has killed this rule.
It’s troubling that such a small thing as a list of dangerous chemicals could be dashed by the White House. In 2009, GAO added EPA’s toxics program to its list of “high-risk programs warranting attention from Congress and the executive branch.” Surely, this is not the kind of attention GAO had in mind. GAO’s auditors have noted that
Full textEPA has a limited ability to provide the public with information on chemical production and risk because of TSCA's prohibitions on the disclosure of confidential business information. About 95 percent of the notices companies have provided to EPA on new chemicals contain some information claimed as confidential.
President Obama issued the latest salvo in the Administration's efforts to placate the business community this morning, in the form of a new Executive Order called “Identifying and Reducing Regulatory Burdens.” The Order would expand and enhance the unfunded mandate that would require agencies to scour through the rule books, finding “excessive” rules that would save regulated companies big money. As I have written elsewhere in this space, the latest example of such an effort would jeopardize food safety by allowing huge poultry processors to self-inspect for salmonella, not incidentally making the lot of the workers who are already overburdened by workplace safety hazards close to intolerable.
The new order sugarcoats its regressive mandate by instructing agencies to seek “public comment” on regulatory “look-backs,” which in practice does not mean comments from mom and pop, who are unlikely to spend their spare time on regulations.gov watching out for the manufacture of dangerous consumer products. While nice in theory, this window dressing cannot obscure the fact that the process announced here is explicitly tilted in a one-way direction toward deregulation. The public comments could include calls to strengthen existing protections, and such strengthening might very well be good for the economy—as regulations often are, industry's "job-killing" rhetoric notwithstanding. Yet the order explicitly says that agencies are to prioritize “those initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens.” The White House is saying agencies should take all the public comment – but prioritize the de-regulation ideas.
The Administration has sought no new funding for agencies to re-examine existing rules. OIRA Administrator Cass Sunstein has been questioned by reporters and concerned Members of Congress on how agencies can do this work without taking away from existing work to protect the public; he has repeatedly asserted that agencies will simply get the work done. This is nonsense. A check of the latest regulatory agendas shows agencies are behind on countless important rules to protect the public’s health and safety. The EPA, for example, recently delayed, again, a rule to limit mercury and other toxic pollutants from industrial boilers.
Going on a hunt for existing regulations to weaken cannot help these busy and under-resourced agencies in their efforts to adopt important new protections for the public as they become inundated in requests from regulated industries to scale back their efforts to protect public health and safety. Having the White House pile on at this moment, when it has already effectively shut down efforts to promulgate long overdue rules to protect workers from silica, asthmatics from smog, and children from heavy agricultural machinery, is a sign that Mr. Sunstein and his staff are less interested in making sure that regulatory agencies are fulfilling their statutory obligation to protect Americans and the environment from a variety of possible harms, than they are in placating industry critics of the President.
Full textWhen the Administration withdrew a rule last month prohibiting young agricultural workers from performing some particularly dangerous tasks, the Department of Labor’s statement didnt't just say it was tabling the proposal, or reconsidering it, or even starting over from scratch. It went an extra step, adding: “To be clear, this regulation will not be pursued for the duration of the Obama administration.”
Given that farm accidents are a very real concern, it's hard to read such an unusually vocal commitment to inaction as anything other than a political gesture. Indeed, the Administration won plaudits from big ag and its supporters. But if the White House actually thought that throwing young agricultural workers under the bus would truly satisfy the appetite of the opposition – and change the politics of the issue – it was wrong.
Here was Janet Fisher, West Virginia’s Deputy Agriculture Commissioner, speaking to the Register-Herald of Beckley: “They had so much of an outcry from farming communities around the country they decided to back off, for now.” The Texas Farm Bureau said that “cooler heads have prevailed–for now.” And here was the editorial page of the Boston Herald: “Take the proposed nanny-state farm-worker regulation withdrawn (but not killed) by the Labor Department last month.”
If you're thinking the Herald might suffer consequences for just making stuff up, don’t hold your breath.
The decision to back off this regulation is a true profile in cowardice. The White House could and should have stood up to the dishonest assertion by industry that the reg would stop family farmers from putting their children to work in the family business. For better or worse, they were exempted from the proposed rule. That notwithstanding, the Administration surrendered, quashing the proposal in an attempt to appease the opposition. In post-truth politics, giving the other side what they want doesn’t necessarily yield much, if anything, in the public debate. The Boston Herald editorial page just doesn’t care. Condemning young agricultural workers to more severe injuries, in other words, is not just bad policy, but is unlikely to win over many of the voters it was targeting.
Full textElectoral politics or public policy? Policy or politics? One ripe example of how the White House rides herd on health and safety agencies, thinking about politics, not policy to determine what they should do, is provided by the latest poster child for curbing allegedly “excessive rules”: a U.S. Department of Agriculture proposal to take federal inspectors off the lines at poultry processing plants and substitute inspections by workers who would simultaneously cope with a speed-up on the line from 90 to 175 birds/minute.
According to White House regulatory czar Cass Sunstein, regulatory decisions made in the name of the President are based on an objective consideration of the merits of health and safety rules, and he has the paperwork to prove it. Executive Order 12,866, Executive Order 13563, Circular A-4, and a wad of memoranda intone just what kinds of detailed analyses agencies are expected to perform before their regulatory proposals cross his desk. Some examples from EO 12,866:
Cross-posted from Legal Planet.
You would think that by now federal agencies would have the NEPA process pretty well down. After all, it’s been the law since 1970, requiring that every federal agency prepare an environmental impact statement before committing itself to environmentally harmful actions. And it’s not that hard to do. Agencies just have to describe the action, alternatives to it, and their effects on the environment relative to not taking the action. Pretty straightforward, really, but a new decision from the 4th Circuit shows that there are still some agencies (and some federal judges) that don’t, or won’t, get it.
Back in the day, the architects of NEPA knew that some agencies would resist giving any real consideration to the environmental costs of their actions. So they designed the EIS requirement to force agencies not only to document the expected environmental impacts of proposed actions, but to release that information to the public, providing an opportunity for the political process to correct any overzealous pursuit of their primary missions.
With the help of citizens who were ready to litigate when NEPA’s procedures were bypassed, most federal agencies learned relatively quickly that they now must own up to the environmental costs of their decisions. But not all, or at least not when they are trying to please state and local partners.
Full textIn the nearly 20 years since the North American Free Trade Agreement (NAFTA) entered into force, the linkages between trade and environmental harm have become clearer than ever. Trade agreements can lead to significant adverse environmental impacts, particularly when countries do not have sufficient environmental laws, policies, and institutions—and trade alone will not increase the demand for higher environmental standards. Instead, free trade agreements (FTAs) may lead to significant increases in pollution and serious adverse impacts from certain economic sectors.
CPR Member Scholars Carmen Gonzalez, David Hunter, John Knox, and I sent a letter today to U.S. Trade Representative Ron Kirk to express our concerns. We argued that when the Office of the U.S. Trade Representative drafts trade promotion authority legislation to implement the Trans Pacific Partnership and other future trade agreements, it should include strong environmental protection provisions. We make eight recommendations for draft trade promotion authority that would ensure that free trade agreements (FTAs) improve trade-environment linkages:
By CPR President Rena Steinzor and Media Manager Ben Somberg
Internal EPA emails obtained by CPR through a FOIA request reveal EPA officials’ frustration regarding the White House’s efforts to triangulate House Republicans’ ferocious attacks on regulations. A White House letter last year emphasizing regulatory costs but barely describing the lives saved and injuries avoided by strong protections angered environmental and public health advocates. The newly released emails show that top EPA officials – who were not even consulted – were also not pleased.
On August 26 of last year, Speaker of the House John Boehner sent President Obama a letter requesting that the Administration provide a list of “planned new rules that would have an estimated economic impact of more than $1 billion.” The goal, of course, was to continue the GOP’s focus on the costs of regulations (the headline of Boehner’s press release: “Citing Spike in Red Tape, Speaker Boehner Seeks Info from White House on Job-Threatening Regulations”). The information Boehner was requesting was already publicly available, but that wasn’t the point; the point was to drive an anti-regulatory message. And it worked: The Washington Post ran a story under the headline “Boehner asks Obama to detail $1 billion regulations.”
And so it was disappointing when the White House took the bait – hook, line, and sinker. President Obama responded to Boehner four days later with a two-page letter that attempted to convince the Speaker (an impossible mission no matter the facts) that the Administration was very busy reducing regulatory costs. In a 19-sentence letter, the President managed only one sentence making the positive case for regulations (“And in 2009 and 2010, the benefits of such rules -- including not only monetary savings but also lives saved and illnesses prevented -- exceeded the costs by tens of billions of dollars.”) The rest of the letter was playing on Boehner’s anti-regulation turf.
Full textOn one level, President Obama’s Executive Order issued Tuesday, “Promoting International Regulatory Cooperation,” seems benign enough. After all, who would be against international cooperation and a desire to “reduce, eliminate or prevent unnecessary differences in regulatory requirements”? Moreover, the Order on its face does little more than set out priorities and procedures for enhancing international regulatory cooperation.
Unfortunately, this Order is a one-way regulatory ratchet that leads only to deregulatory changes in the United States that at best will provide no new protection to U.S. citizens or the environment. The Order is motivated solely to eliminate “unnecessary” differences in regulatory requirements that “might impair the ability of American businesses to export and compete internationally.”
The priority for regulators is clear. Scour our regulations and compare them to those of our trading partners—or better yet simply let the U.S. Chamber of Commerce lead you—to identify those areas of “unnecessary” differences. What then? Eliminate the differences by rewriting U.S. regulations to those of our trading partners, so many of whom have terrible worker safety and environmental policies (hint: China). Nothing in the Order asks the agencies to conduct the hard negotiations or cooperation to change, let alone increase, the protections of our trading partners. The clear expectation is that “unnecessary” differences will lead to the United States conforming our standards to those of the foreign regulators. If “unnecessary” is read narrowly enough, the order could do little damage to our environmental and public health protections—but the pressures and signals in this Order all point toward an expansive witch hunt for “unnecessary” regulatory differences. The Chamber of Commerce’s unusually zealous approval of this Order is not to be overlooked.
Full texta(broad) perspective
Today’s post is third in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties. Each month, this series will discuss one of these ten treaties. Previous posts are here.
Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal
Adopted and Opened for Signature on March 22, 1989
Entered into Force on May 5, 1992
Signed by the United States on March 22, 1990
Sent to the Senate, May 17, 1991, and approved by the Senate on August 11, 1992
Loaded with toxic ash from Philadelphia waste incinerators, the Khian Sea, a cargo ship, left port in 1986 – and spent two years wandering at sea attempting to dispose the ash. Some of the ash was dumped in Haiti as so-called “topsoil,” and the remaining ash disappeared somewhere between Singapore and Sri Lanka. Years later, at trial, the crew admitted dumping the nearly 10,000 tons of toxic ash in the Atlantic and Indian Oceans. It was one of the most outrageous incidents of toxic waste dumping – but sadly, this was hardly an isolated incident.
Today, international trade in hazardous waste is a multi-billion dollar industry that moves highly toxic materials, such as pesticide residues, used solvents, and process wastes from manufacturing. The fastest growing part of the trade is electronic waste (such as laptops, cellphones, and televisions), which contain lead, mercury, and other toxic components. And just like the Khian Sea incident, there is still an enormous incentive to ship waste to poor countries with lax or nonexistent environmental regulation.
Full textIn its own words, the Administrative Conference of the United States (ACUS) is “an independent federal agency dedicated to improving the administrative process through consensus-driven applied research, providing nonpartisan expert advice and recommendations for improvement of federal agency procedures.”
On Tuesday afternoon, ACUS and the U.S. Chamber of Commerce are jointly sponsoring an event at the Chamber, “Next Steps & Implementation of ACUS Recommendations on: Incorporation by Reference & International Regulatory Cooperation.”
That’s over the line, particularly given the agenda of the event, argue CPR President Rena Steinzor and Member Scholar Thomas McGarity, in a letter to Paul Verkuil, ACUS’s Chairman. Steinzor and McGarity write:
Especially in this early period of its rebirth, the organization cannot afford to be perceived as taking sides in the enormously destructive crusade against regulation that the Chamber and other powerful industry groups are leading.
The letter is here.
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