This post was originally published by the Yale Journal on Regulation's Notice & Comment blog. Reprinted with permission.
In 1958, civil rights leaders, including Dr. Martin Luther King, Jr. and Andrew Young, met in New York with Reverend Everett Parker, who was the Director of the Office of Communications of the United Church of Christ. The Office was an advocacy arm of the church, whose members’ commitment to civil rights dated back to colonial times. The civil rights leaders sought the Office’s assistance because of their concern about the biased coverage of the civil rights movement by Southern television stations. After years of litigation, the meeting led to two decisions in the D.C. Circuit (United Church of Christ I & United Church of Christ II) that blocked efforts by the Federal Communications Commission (FCC) to relicense WLBT, a Jacksonville, Mississippi television station, which had engaged in news and other programming that were plainly racist.
The cases are remembered today, if they are remembered at all, for a pathbreaking holding that television viewers had a statutory right to intervene in FCC’s license hearings, an issue that the court treated as standing. But they are important for another reason. After reading the cases some years ago, I set out to find the backstory, which I described in a law review article, and which is recounted in far more detail in an excellent book by Kay Mills. What is painfully evident from taking a look at these events is that racism was deeply imbedded in the organizational culture at the FCC. The Commission bent over backwards to find a way to license WLBT despite its recognition of the station’s biased news programing and coverage.
Richard Rothstein, in his remarkable book, The Color of Law: A Forgotten Story of How Our Government Segregated America, reveals the significant impacts of a similar racist culture at the Federal Housing Administration (FHA), which encouraged white families and persons to buy suburban houses using FHA guaranteed mortgages, but which did not make the same opportunity available to black families and persons. Rothstein demonstrates how the white ownership of houses since the 1950s accounts for much of the wealth gap between races in today’s America.
Regulatory agencies do not appear to be permeated by such overt racism anymore, but structural or institutional racism still exists if bias is built into existing institutions. We tend to think of administrative procedures as being neutral between competing points of view, but as the environmental justice movement (EJ) keeps reminding us, this is not necessarily so. It is no secret, for example, that the rulemaking process is dominated by corporate interests, and the same is true of the lobbying that occurs at agencies. Environmental and other public interest groups are hard pressed to match this advocacy. Less noticed is that the fact that there is little or no participation by marginalized communities in rulemaking, although as the pandemic has taught us our most disadvantaged citizens are the ones that bear the brunt of inadequate government protections. Efforts to reach out and speak to such communities are simply not a regular part of rulemaking practice. True, there is no legal barrier to such participation, but there are considerable structural and economic barriers, which we simply overlook.
Law can do better. For example, the Center for Progressive Reform has recently published a report that I coauthored recommending that Congress establish a private right of action modeled on the citizen suit provisions in some of the environmental statutes to enforce the workplace safety and health regulations promulgated by the Occupational Safety and Health Administration (OSHA). Minority workers are often the most harmed by OSHA’s dysfunction. This report and another CPR report document, for example, that OSHA has entirely failed to protect the mostly minority workers in packing plants from COVID-19—employees who had no choice but to go to work in order to buy food and shelter for themselves and their families.
There is more. A number of public interest groups now recognize the importance of teaching people how to participate effectively in the notice-and-comment process for pending rulemakings and have developed “boot camps” and “toolkits” to help accomplish this objective. More significantly, agencies can be required to reach out to such communities and bring them into decision-making. Similarly, advocacy groups are working to empower individuals to play a greater role in monitoring corporate regulatory compliance, through greater use of “citizen science” projects and other techniques, and to seek accountability for regulatory violations, through participation in citizen suits or by serving as whistleblowers, as the CPR report on a private right of action recommends.
We would do well to remember Representative (D-Mich.) John Dingell’s promise, “I’ll let you write the substance … you let me write the procedure, and I’ll screw you every time.” Those who created the existing structures may not have had this intention in mind, but that does not mean that administrative procedures are not biased against the marginalized communities most in need of regulatory protection. The administrative process can be more inclusive, and it is time, past time really, to have a discussion how to make it so.
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Sidney A. Shapiro | August 12, 2020
Regulatory agencies do not appear to be permeated by overt racism, but structural or institutional racism exists if bias is built into existing institutions. We tend to think of administrative procedures as being neutral between competing points of view, but as the environmental justice movement (EJ) keeps reminding us, this is not necessarily so. It is no secret, for example, that the rulemaking process is dominated by corporate interests, and the same is true of the lobbying that occurs at agencies. Environmental and other public interest groups are hard pressed to match this advocacy. Less noticed is that the fact that there is little or no participation by marginalized communities in rulemaking, although as the pandemic has taught us, our most disadvantaged citizens are the ones that bear the brunt of inadequate government protections. Efforts to reach out and speak to such communities are simply not a regular part of rulemaking practice. True, there is no legal barrier to such participation, but there are considerable structural and economic barriers, which we simply overlook. The administrative process can be more inclusive, and it is time, past time really, to have a discussion how to make it so.
Kim Sudderth, Samuel Boden | August 11, 2020
On October 20, 1994, rising floodwaters from the San Jacinto River in Houston, Texas, caused a pipeline to break open, allowing gasoline to gush out and the river to catch fire. Such flooding is increasingly likely as the effects of climate change take hold, and yet, in the quarter century since that disaster, the federal government has implemented no new regulations to ensure that oil and gas operators are adequately preparing for the risks from more frequent and intense floods caused by the climate crisis.
Darya Minovi, Katlyn Schmitt | August 5, 2020
In July, the Maryland Department of Environment (MDE) released the findings of a new ambient air quality monitoring project focused on the state’s Lower Eastern Shore. This effort was announced more than a year ago as a partnership between the Delmarva Poultry Industry (DPI), a trade group for just what it sounds like, and MDE to monitor ammonia and particulate matter emissions from industrial poultry operations.
James Goodwin | August 4, 2020
Yesterday, I joined a group of CPR Member Scholars and staff in submitting comments on the Environmental Protection Agency's (EPA) "benefits-busting" proposal, which would drastically overhaul how the agency performs cost-benefit analysis on its biggest Clean Air Act rules. As we explain in our comments, the action is a thinly veiled effort to rig the results of those analyses – more so than they already are – to make it harder to issue appropriately strong safeguards, thereby sabotaging the effective and timely implementation of the Clean Air Act.
Brian Gumm, Matt Shudtz | August 3, 2020
Based on its current projected path, Tropical Storm Isaias could bring heavy rains up and down the East Coast, from the Carolinas and Virginia to the Delmarva Peninsula, Pennsylvania, and New Jersey. Along the way, the storm could swamp industrial facilities, coal ash ponds, concentrated animal feeding operations (CAFOs), and more. From Hurricane Florence to Hurricane Harvey and beyond, in the past 15 years, we've seen numerous tropical storms flood unprepared facilities. This has caused significant infrastructure damage and unleashed toxic floodwaters into nearby communities and waterways, threatening public health and making residents sick.
Matt Shudtz | August 3, 2020
The nation is finally beginning to grapple with the widespread disparities in public health, economic opportunity, and community well-being across race and class that stem from longstanding systems of oppression and injustice. As systems thinkers, CPR's Board, staff, and Member Scholars have devoted considerable time to researching and understanding the roots of these inequities, considering the disproportionate impacts on frontline communities, and advocating for just policy reform.
Joel A. Mintz | July 29, 2020
In an article headlined, "Dozens of facilities skipping out on EPA pollution monitoring have prior offenses," The Hill reported the following on Wednesday: "More than 50 facilities across the country that have faced enforcement actions for alleged Clean Water Act violations are among those taking advantage of an Environmental Protection Agency (EPA) policy that lets companies forgo pollution monitoring during the pandemic, an analysis by The Hill found. The temporary EPA policy, announced in March, says industrial, municipal and other facilities do not have to report pollution discharges if they can demonstrate their ability to do so has been limited by the coronavirus. The Hill first reported that 352 facilities have skipped water pollution monitoring requirements under the policy, which applies to air pollution as well. Of those facilities, 55 have faced formal enforcement actions in the past five years from either the EPA or state regulators." As disturbing as this news is, it is absolutely no surprise.
Katie Tracy | July 29, 2020
Workers presently have no right to bring a lawsuit against employers under the Occupational Safety and Health Act (OSH Act) for failing to provide safe and healthy working conditions. If an employer exposes workers to toxic chemicals or fails to guard a dangerous machine, for example, they must rely on the Occupational Safety and Health Administration (OSHA) to inspect, find a violation, and issue a citation. This omission in the 1970 statute is especially troubling in the context of COVID-19, as workers across the United States continue to face a massive workplace health crisis without any meaningful support from OSHA or most of its state and territorial counterparts. As the pandemic makes crystal clear, workers need and deserve the right to step up and enforce the law when OSHA is unable or unwilling to do its job. In a new CPR report, CPR Member Scholars Michael Duff, Thomas McGarity, Sidney Shapiro, Rena Steinzor, and I call on Congress to update the OSH Act and provide workers with a private right of action.
James Goodwin | July 28, 2020
Today, a group of 136 law professors from across the United States, including 31 Center for Progressive Reform (CPR) Member Scholars, will send a letter to congressional leaders urging them to “ensure that our courthouse doors remain open to all Americans for injuries they suffer from negligence during the COVID-19 pandemic.” The letter, spearheaded by CPR Member Scholars Dan Farber and Michael Duff, comes in response to a push by the U.S. Chamber of Commerce and other corporate special interests to include a “federal liability shield” in the next COVID relief bill, which is now being negotiated in Congress. This shield would prevent ordinary Americans from holding corporations accountable in the civil courts when their unreasonably dangerous actions cause people to become sick with the virus.