CPR, Public Interest Allies Call on EPA to Abandon 'Benefits-Busting' Rule
Earlier this week, 19 Member Scholars with the Center for Progressive Reform (CPR) submitted comments to the Environmental Protection Agency (EPA) that provide a detailed legal and policy critique of the agency's "benefits-busting" rulemaking.
Since early July, EPA has been accepting feedback on an advance notice of proposed rulemaking (ANPRM) that could lead to a complete overhaul of how the agency performs cost-benefit analysis on its environmental and public health rules. Consistent with other anti-safeguard moves the Trump EPA has made, this overhaul would further rig an already rigged system for conducting these analyses. The plainly intended result would be to make it harder to justify needed public protections by putting an industry-friendly thumb on the scale.
As the CPR Member Scholars explain, the real danger is that EPA could try to use this rulemaking to institute a one-size-fits-all "supermandate" requiring all agency decision-making to be conducted through the lens of "formal" cost-benefit analysis. Such analysis involves a nominal attempt to identify the economically "optimal" level of regulation by tallying up and converting into monetary terms all the costs and benefits of numerous regulatory "alternatives" and identifying the one that maximizes net benefits.
Needless to say, this version of cost-benefit analysis is the stuff of textbook legend: Its lofty goal dazzles intellectual curiosity in theory but is impossible to achieve in practice. More to the point, regulatory decision-makers never actually seek to achieve this goal in any event,
Trump's OSHA Backtracks on Electronic Recordkeeping Rule over Bogus Privacy Concerns
The Trump administration has aggressively sought to undermine public safeguards since taking office, all under the guise of making America great (again?). Nowhere has this been more evident than the Environmental Protection Agency (EPA), where Trump appointees have sought to attack most every standard adopted during the Obama era, as well as long-standing analytical procedures (see here and here) designed to ensure any new standards are evidence-based and scientifically sound. These attacks do not stop at EPA, however. Trump has
Miami Herald Op-Ed: New EPA Administrator, Same Menace to the Environment
by Joel Mintz | August 02, 2018
This op-ed originally ran in the Miami Herald. The forced resignation of Scott Pruitt as administrator of the U.S. Environmental Protection Agency (EPA) brought celebration and relief in many quarters. Pruitt was a walking scandal machine who generated an endless stream of headlines about spending abuses, cozy relationships with industry lobbyists, first-class travel at government expense, and aides asked to perform personal tasks, including buying lotions and mattresses and unsuccessfully helping his wife land a Chick-fil-A franchise. Of more lasting
A Real, Not Faux, Transparency Proposal for Regulatory Science
Originally published on The Regulatory Review. Reprinted with permission. In a previous essay, we critiqued the U.S. Environmental Protection Agency’s (EPA) recently proposed transparency rule, arguing that the proposal conflicts with best scientific practices and would further erode the EPA’s ability to do its job. According to supporters, the central goal of the proposed rule is to increase the transparency of regulatory science. Unfortunately, the proposal does not begin to deliver. No matter how many times the word “transparency” is repeated
Wheeler's Chance for a Course Correction at EPA
Andrew Wheeler will be on the hot seat today when he heads to Capitol Hill for his first appearance before the Senate Environment and Public Works Committee as Acting Administrator of the EPA. Senators initially scheduled the hearing when Scott Pruitt was Administrator and his ethical problems had reached such epic proportions that his party's support was starting to erode. With Pruitt out and Wheeler in, today's hearing has the potential to be more about environmental policy than conflicts of
Pruitt's Super-Polluting Parting Shot
Originally published on The Regulatory Review. Reprinted with permission. In the fitting last act of his corrupt reign as the Administrator of the U.S. Environmental Protection Agency (EPA), Scott Pruitt handed a gift to companies who profit from producing cheaper trucks by dispensing with modern pollution control equipment. He arranged for political appointees at EPA to issue memoranda that together promised that EPA would not enforce an existing legal limit on production numbers for the super-polluting trucks. The memos had all
South Florida Sun Sentinel Op-Ed: Kavanaugh May Limit Environmental Protections If Confirmed to Supreme Court
This op-ed originally ran in the South Florida Sun Sentinel. Recent events have underscored the vital importance of effective environmental regulation for Floridians. Blue green algae — apparently caused by releases of contaminated water from Lake Okeechobee — has blanketed significant portions of our state’s east and west coasts, causing major economic losses and posing a threat to the health of coastal residents. Pro-active regulation and enforcement of environmental laws could (and should) have prevented these abysmal consequences. In fact, lawsuits
American Prospect Commentary: Judge Kavanaugh’s Deregulatory Agenda
This commentary was originally published by The American Prospect. Most of us take for granted the federal regulations that make our air cleaner, our drinking water purer, our food, highways, and workplaces safer, and our economic transactions less vulnerable to fraud and abuse. And few of us realize the extent to which those protections are subject to reversal by federal courts applying legal principles prescribed by the Supreme Court. If confirmed to the Supreme Court, Judge Brett Kavanaugh would be
Imagining a Justice Kavanaugh: For One Endangered Frog, Might Justice Scalia Have Been a Kinder, Gentler Jurist?
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court. If Judge Brett Kavanaugh's Supreme Court confirmation process goes as quickly and affirmingly as his supporters hope, one of the cases he'll hear on his first day on the bench will invite him to consider an imponderable question: Whether it's possible to put a dollar value on an endangered species. Weyerhaeuser v. U.S. Fish and Wildlife Service will raise an important and long-controversial
Kavanaugh's Threat to Government Transparency and Accountability
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court. Presidents control crucial government agencies with authority over the environment, food and drug safety, and workplace conditions. Through various environmental, health, safety, and other laws, Congress has given these agencies broad authority to issue rules and regulations that affect the lives of every American. But current law provides safeguards against arbitrary decisions – safeguards that Judge Brett Kavanaugh would weaken or eliminate if confirmed to
Duluth News Tribune Op-Ed: U-turn on Twin Metals a Massive Giveaway of Irreplaceable Public Resources
This op-ed originally ran in the Duluth News Tribune. Any Minnesotan who has ever dipped a canoe paddle, pitched a tent, or laced up a hiking boot while visiting the Boundary Waters Canoe Area Wilderness can tell you why it is the nation's most-visited wilderness area and considered a crown jewel of Minnesota. Unfortunately, Twin Metals, a subsidiary of the Chilean mining giant Antofagasta PLC, has its eye on the area in hopes of operating a sulfide-ore copper-nickel mine, bringing one
If Confirmed, Kavanaugh Would Tilt Supreme Court against Public Protections
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court. Last night, President Donald Trump set the stage for a contentious debate about American social and economic welfare in the decades to come, nominating a Washington insider with a narrow worldview to the Supreme Court. Brett Kavanaugh's opinions on issues related to reproductive and civil rights are at the forefront of many voters' minds, but there's another danger that deserves just as much attention: What
Senate Must Preserve Rule of Law When Considering Benczkowski and Pruitt's Successor
In addition to deciding the fate of a Supreme Court nominee, the Senate must soon consider whether to approve Brian Benczkowski as head of criminal enforcement for the Department of Justice and a nominee to replace Scott Pruitt as EPA administrator. In early 2017, I urged senators to fulfill their constitutional responsibilities by only approving nominees who would faithfully execute the laws of the United States. But the Senate approved Pruitt anyway, with disastrous results. The chamber now needs to
Borrowing from CPR Playbook, Small Business Administration Brings New 'Win-Win' Approach to Regulations
When it comes to regulatory protections for health, safety, and the environment, the Small Business Administration (SBA) and its Office of Advocacy don't always put the public interest first. Falling in line with industry and small-government conservatives, it often opposes public protections, particularly where small businesses are concerned. So I was delighted to see a faint ray of sensibility peek through the SBA's usual anti-safeguard cloud last week when it issued a press release announcing its collaboration with a professional
The Chevron Doctrine: Is It Fading? Could That Help Restrain Trump?
Cross-posted from LegalPlanet. In June, the Supreme Court decided two cases that could have significant implications for environmental law. The two cases may shed some light on the Court's current thinking about the Chevron doctrine. The opinions suggest that the Court may be heading in the direction of more rigorous review of interpretations of statutes by agencies like EPA and the SEC. That could be important as Trump's deregulatory actions start hitting the judicial docket. Thus, in the short-run, limiting Chevron
Scott Pruitt Wants to Pick Winners and Losers by Cooking the Books at EPA
UPDATE (July 2, 2018): EPA has granted a one-month extension to its original comment period. Public comments on the advance notice of proposed rulemaking are now due on August 13. Soon after his confirmation, EPA Administrator Scott Pruitt quickly set out to take a "whack-a-mole" approach to advancing his anti-safeguard agenda, attacking particular rules designed to protect Americans and the environment from specific hazards – climate change, various air and water pollutants, and so on – one by one. But
At Small Business Hearing, CPR's Ristino Will Connect the Dots between Strong Safeguards and Strong Small Farms
This morning, CPR Member Scholar and Vermont Law School Professor Laurie Ristino will testify at a hearing before the Subcommittee on Agriculture, Energy, and Trade of the House Small Business Committee. The majority's not-so-subtle objective for the hearing is to apply familiar conservative talking points against federal regulations to the specific context of small farms. In contrast to the subcommittee majority's three witnesses, all of whom represent industry trade associations that have strongly criticized environmental and other regulations in the
Deconstructing Regulatory Science
Originally published on The Regulatory Review. Reprinted with permission. The U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt recently opened another front in his battle to redirect the agency away from its mission to protect human health and the environment. This time, he cobbled together a proposed rule that would drastically change how science is considered during the regulatory process. Opposition soon mobilized. In addition to the traditional forces of public interest groups and other private-sector watchdogs, the editors of the
When it comes to health, safety and the environment, executive branch enforcement of the law has become yet another arena to fight and re-fight policy battles presumably settled in Congress. In particular, regulated entities, including companies that pollute or make potentially dangerous products, spend millions working to block, delay, and unravel such protections.
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