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Dec. 20, 2019 by James Goodwin

Top Ten Regulatory Policy Stories of 2019 (IMHO)

For many of us, the best way to characterize the past year in three words would be “too much news.” That sentiment certainly applies to the wonky backwater of the regulatory policy world. Today, that world looks much different than it did even just a year ago, and with still more rapid changes afoot, the cloud of uncertainty that now looms ominously over it doesn’t appear to be dissipating anytime soon. None of this is good for the health of our people, our democracy or our economy, and it’s certainly not good for the millions of working families struggling to keep their heads above water between paychecks.

Here, in no particular order, are 10 of the biggest developments from the past year that have contributed to this disquieting state of affairs.

  1. Nondelegation bullet dodged – for now. The case, Gundy v. United States, presented as clear cut an opportunity as there could be for the Supreme Court to institute a strict new approach to enforcing the nondelegation doctrine – long a top priority for small government ideologues intent on dismantling the regulatory system. At the time of oral arguments, though, Justice Kavanaugh had not yet been seated on the Court …

Dec. 17, 2019 by James Goodwin
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Last week, my CPR colleagues and I were honored to be joined by dozens of fellow advocates and member of the press for a webinar that explored the recent CPR report, Regulation as Social Justice: A Crowdsourced Blueprint for Building a Progressive Regulatory System. Drawing on the ideas of more than 60 progressive advocates, this report provides a comprehensive, action-oriented agenda for building a progressive regulatory system. The webinar provided us with an opportunity to continue exploring these ideas, including the unique potential of the regulatory system as an institutional means for promoting a more just and equitable society.

Few organizations better illustrate this potential better than the Louisiana Bucket Brigade, so we were delighted to be joined at the top of the webinar by the organization's Founding Director, Anne Rolfes. Anne vividly described the work that the Louisiana Bucket Brigade is doing, empowering members of the …

Sept. 20, 2018 by Laurie Ristino
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Donald Trump has, in a sense, made good on his promise to "drain" Washington, D.C. – but not in the way many people probably thought he would. The exodus from our nation's capital has been made up of the scientists, diplomats, and policy experts that a democracy needs to function, not the high-powered, special interest lobbyists voters likely had in mind. Meanwhile, a raft of grifters has gleefully taken a temporary perch in the executive branch. The ensuing debacles, scandals, and assaults on safeguards and agencies have made it stunningly clear how critical a competent, public interest-focused executive branch is to our country's well-being.

One recent example of Trump's war on federal agencies is Department of Agriculture (USDA) Secretary Sonny Perdue's surprise announcement last month that he planned to reorganize the Economic Research Service (ERS), an independent economic research agency. Perdue's announcement was a shock to ERS …

July 24, 2018 by Karen Sokol
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This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.

"This is a case about executive power and individual liberty." That is how Judge Brett Kavanaugh started the opinion he wrote for a three-judge panel of the D.C. Circuit Court of Appeals holding that the structure of the Consumer Financial Protection Bureau (CFPB) was unconstitutional. That opinion is one among many that reflects Supreme Court nominee Kavanaugh's belief that administrative agencies are in a constitutionally precarious position that demands strong judicial supervision.

Many believe that, as a result, a Justice Kavanaugh would be a reliable vote in favor of industry and against administrative agencies and the environmental, health, safety, and consumer protections they enforce. Others claim he would be "evenhanded" in cases challenging agency action and simply do his job as a judge by insisting that agencies …

July 23, 2018 by Laurie Ristino
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Scott Pruitt's narcissistic reign as EPA Administrator consumed advocates' collective energies, and rightfully so. It was a drama that recently ended – not via Trump tweet, but by old-fashioned resignation. Alas, this victory's potential downside is that the new guy at EPA, Andrew Wheeler, may be more effective at dismantling environmental protections than Pruitt was because Wheeler actually understands how bureaucracy works.

Then, of course, came the orchestrated events surrounding Justice Kennedy's retirement and President Trump's pick to fill the vacancy, thrusting Brett Kavanaugh to center stage. Environmental protection (among other issues) seems imperiled as the Court is poised to take a hard "right" turn if Kavanaugh is confirmed. 

But as we continue to keep a vigilant eye on EPA and the future trajectory of the Supreme Court, let's not forget weighty environmental legislation currently making its way through Congress: the 2018 Farm Bill. 

Yes, you read that …

June 19, 2018 by Rena Steinzor, Wendy Wagner
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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 most prominent scientific journals in the country raised the alarm and nearly 1,000 scientists signed a letter opposing the proposal.

This essay offers a contextual explanation of the reasons why scientists, who are typically loathe to enter the regulatory fray, are so alarmed.

In normal times, when agencies must evaluate the scientific evidence that informs a significant policy decision about health or environmental hazards …

Nov. 28, 2017 by Nina Mendelson
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Originally posted at Notice & Comment, a blog of the Yale Journal on Regulation and the American Bar Association Section of Administrative Law & Regulatory Practice. Reprinted with permission.

On Friday, November 24, Consumer Financial Protection Bureau Director Richard Cordray named Leandra English, the longtime CFPB Chief of Staff, to the post of Deputy Director. Based on legislation specific to the CFPB, that put her in a position to serve as Acting Director upon his departure. Cordray then resigned. A few hours after Cordray resigned, the White House announced that President Trump had selected OMB Director Mick Mulvaney to serve as CFPB Acting Director, invoking the President’s powers under the more general Federal Vacancies Reform Act. Unfortunately, President Trump’s actions may result in needless—and illegal—chaos at the CFPB. The President surely retains the power to choose the next CFPB Director, but only by …

March 2, 2017 by Lesley McAllister
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Originally published on Environmental Law Prof Blog by CPR Member Scholar Lesley McAllister.

Did you know that as of July 2016, we have a new federal law mandating that genetically engineered food be labeled? It is true – see 7 U.S.C. § 1639(b)(2)(D) (Jul. 29, 2016). So when, you might ask, will you be able to know which of all those foods we buy at the grocery store are produced with GMOs?

It could be a very long wait. For one thing, the law – the National Bioengineered Food Disclosure Standard – didn't actually mandate a label that directly states that the food is a GE food. Rather, Congress left open the possibility that USDA allow scannable QR codes instead of on-package labeling as the means of disclosure. Congress charged the USDA with completing a study within one year (i.e. by July 2017) regarding …

Dec. 14, 2016 by Rena Steinzor
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A burgeoning and little-regulated private industry that specially mixes drugs at so-called compounding pharmacies poses a public-health hazard that the Trump administration is about to make a whole lot worse. An earlier version of this story appeared in The American Prospect. 

President-elect Donald Trump has pledged to eliminate 70 to 80 percent of all federal regulations, and the Food and Drug Administration's (FDA) rulebook is near the top of his list. Close Trump adviser Newt Gingrich has denounced the FDA as the nation's leading "job killer," and has called the agency "a major prison guard stopping the breakout in health."

If the Trump administration makes good on these threats, an already weakened FDA could approach paralysis, exposing millions of patients to unsafe medications. Particularly at risk will be those who receive ostensibly "sterile" injections for back and neck pain, among other ailments, from compounding pharmacies …

Nov. 30, 2016 by James Goodwin
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Many Americans would likely be shocked to learn how lax government oversight of the manufacture and design of aircraft, such as airplanes and helicopters, has become. After all, any list of those areas of the economy that would seem to cry out for strict regulation would have to include aircraft production and maintenance, considering that when aircraft are defective or contain defective parts, the consequences are almost inevitably catastrophic and tragic. 

Yet, in a 2004 audit, Congress' nonpartisan Government Accountability Office (GAO) found that severe budget constraints had compelled the Federal Aviation Administration (FAA) – the agency charged with overseeing aircraft safety – to outsource to private parties nearly 90 percent of the work it is supposed to do to ensure that aircraft meet applicable safety requirements. In some cases, the private parties taking on these tasks are the manufacturers themselves, raising at least the appearance, if not the …

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