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March 28, 2013 by Sidney Shapiro

Rep. Duckworth's Small Business Paperwork Relief Act is a Flawed Solution for the Wrong Problem

Rep. Tammy Duckworth appears to have been caught up in the anti-regulatory fervor that has continued to afflict the House of Representatives ever since the GOP took control there in 2010.  On Monday, Representative Duckworth, an Illinois Democrat, announced a plan to address what she said was a problem: “For businesses with less than twenty employees, the annual cost of federal regulation can be over $10,000 per worker.”  But before we get to the proposed solution, there’s a problem with the stated problem: it’s just not true.  The stat comes from the 2010 “Crain and Crain” study commissioned by the Small Business Administration’s (SBA) Office of Advocacy, a study that has been thoroughly debunked in a CPR white paper, by the Congressional Research Service, EPI, and others. Fully 70 percent of the study’s cost estimates came from a regression analysis based on opinion polling about perceived regulatory climate in different countries.

Having aired a faulty claim of a problem, Rep. Duckworth introduced a bill ostensibly aimed at fixing it, by reducing small business reporting burdens.  The bill, the Small Business Paperwork Relief Act, would bar federal agencies from fining “small businesses” for first-time violations of …

March 22, 2013 by Matthew Freeman
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March 22, 2013 by Michael Patoka
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In late 2011, a little known but surprisingly influential independent federal agency called the Administrative Conference of the United States (ACUS) conducted a research project on “International Regulatory Cooperation” (IRC), culminating in a set of recommendations to U.S. agencies. In a letter sent yesterday (March 21), CPR Member Scholars Rena Steinzor and Thomas McGarity, and I urge ACUS Chairman Paul Verkuil to look back over the project’s many flaws, which reflect—in both process and substance—ACUS’s pervasive bias toward the views of regulated industries.

What exactly is meant by “international regulatory cooperation”? As we write:

The principal objective of IRC is to “harmonize” U.S. regulatory standards with those of other countries or international standard-setting organizations. …. There is always a danger that such harmonization efforts will become a deregulatory “race to the bottom” in which nations, at the urging of business groups, converge …

March 20, 2013 by Dave Owen
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Two months ago, a federal district court in Alaska set aside the Department of the Interior’s designation of critical habitat for the polar bear.  This had been the most geographically extensive critical habitat designation ever under the Endangered Species Act (ESA), but it provoked adamant opposition from the petroleum industry and the state of Alaska.  That isn’t atypical; critical habitat designations often generate controversy.  But one might wonder why.

The ESA’s only provision directly targeted at critical habitat protection is the so-called adverse modification prohibition.  Specifically, section 7 of the ESA prohibits federal agencies from taking any action “likely to… result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.”  In environmental law casebooks, academic literature, and, sometimes, in practice, that prohibition can seem like the …

March 19, 2013 by Rena Steinzor
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On Friday, the White House Office of Information and Regulatory Affairs (OIRA) returned a proposed rule on air pollution standards for oil refineries to EPA, insisting that the agency complete “additional analysis” before moving forward. EPA’s efforts to reduce hazardous pollutants from these facilities will be delayed for months or likely years.  And that additional analysis?  OIRA won’t even say what it’s for.  “Trust us” is not the most reassuring government transparency.

EPA was proposing to revise the emissions standards for hazardous air pollutants from oil refineries, incorporating the results of a “risk and technology review,” which is used to determine whether additional reductions are warranted in light of the remaining risks to human health that the facilities present and the technology now available to lower their harmful emissions. The proposal would also amend new source performance standards (NSPS) for a number of other …

March 15, 2013 by Emily Hammond
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The coal-fired power plant industry has always fought air-emissions standards enacted pursuant to the Clean Air Act (CAA).  But the industry has increasingly raised the specter of reliability problems, arguing that EPA’s recent “tsunami” of regulations will cause a “train wreck,” forcing companies to retire aging plants so rapidly that lost capacity will outpace the development of new sources.  The result, they maintain, will be such an unmanageable strain on the regional grids that they will have to impose brownouts and blackouts as a consequence.   

The overheated rhetoric of reliability threatens to overwhelm and run aground meaningful debate about environmental regulation, climate change, and the appropriate mix of fuels for generating electricity.  There is no doubt that reliability is a critical concern—but it is being misused to obscure the fact that many updates to our power supply are necessary, achievable, and taking place already as …

March 14, 2013 by Matthew Freeman
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This morning, CPR President Rena Steinzor testifies before the House Committee on Small Business's Subcommittee on Investigations, Oversight and Regulations. From the witness list, it would appear that this'll be another in a series of hearings structured by House Republicans to inveigh against the regulations that protect Americans from a variety of hazards in the air we breathe, water we drink, places we work, products we buy, food we eat, and more.

If history is any guide, most of the testimony and discussion will focus not on how best to protect Americans from such problems, but on the costs to small business of doing so. Steinzor is the lone witness permitted to the minority party -- the Democrats, that is -- and as such, could well be the only person who mentions the benefits of regulation. Study after study has demonstrated that the economic benefits of regulation …

March 13, 2013 by John Echeverria
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Next Wednesday, the Supreme Court will hear oral argument in the case of Horne v. U.S. Department of Agriculture – a complicated and relatively little-noticed case that could have important implications for the direction of “takings” doctrine and, in turn, for how far judges wielding this doctrine may intrude upon the policy-making functions of the elected branches.  To understand the case, it is useful to analogize the issues in the case to a set of Russian nested dolls.

The issue representing the innermost doll, which the Court will only get to if it can unpack the outer dolls, is the most intriguing and arguably the most significant in terms of the future of takings doctrine.  The question is whether a federal agricultural marketing program results in a “taking” of private property within the meaning of the Takings Clause of the Fifth Amendment by requiring raisin producers to …

March 13, 2013 by Ben Somberg
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A quick update on the OIRA leadership front: Dominic Mancini has been named the Deputy Administrator of OIRA, and now “leads” the office from this position, an OMB spokesperson says via email (The Hill was up with this news a bit earlier today). Boris Bershteyn’s appointment as Acting Administrator has ended, the spokesperson said. Bershteyn had reached a time limit under the Federal Vacancies Reform Act, which puts restrictions on acting officers performing in Senate-confirmed positions. By the letter of the law, the Administrator of OIRA is a Senate-confirmed position; the Deputy Administrator is not.

Mancini joined OIRA as an economist in 2002 or 2003, and in 2009 became OIRA’s Branch Chief for Natural Resources and the Environment.

March 12, 2013 by Thomas McGarity
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Next Tuesday, the Supreme Court will hear oral arguments in Mutual Pharmaceutical Co. v. Bartlett, a case that raises once again the troubling question of whether federal regulatory agencies should trump local juries in common law tort actions.  The precise question at issue is whether the fact that the federal Food and Drug Administration (FDA) approved a name-brand drug many years ago precludes a state court jury from holding the manufacturer of the generic version of that drug strictly liable for damages to patients caused by marketing the drug. 

The plaintiff in this case, Karen Bartlett, visited her doctor in December 2004 complaining of shoulder pain.  Her doctor prescribed Clinoril, one of many non-steroidal anti-inflammatory drugs (NSAID) that are commonly used to treat arthritis, bursitis, and other painful conditions.  When Ms. Bartlett’s pharmacist filled the prescription, however, it gave her the generic version of the drug …

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More on CPR's Work & Scholars.
March 28, 2013

Rep. Duckworth's Small Business Paperwork Relief Act is a Flawed Solution for the Wrong Problem

March 22, 2013

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March 22, 2013

Taking ACUS to Task for Industry Bias in 'International Regulatory Cooperation' Project

March 20, 2013

Friday in DC: Creative Approaches to Critical Habitat Protection Under the ESA

March 19, 2013

Refinery Rule Returned to EPA for Additional 'Analysis': How Big Oil, OIRA, and the SBA Office of Advocacy Teamed Up to Delay Progress

March 15, 2013

Power Plant Regulation and the Rhetoric of Reliability

March 14, 2013

Steinzor Testifies this Morning on Benefits of Regulation, Role of SBA's Office of Advocacy