From the moment they secured majorities in both chambers, congressional Republicans have made no secret of their intention to launch an all-out, guerilla warfare-style campaign against the federal government — and even the very notion of governance itself. Accordingly, they have pursued a strategy of salt-the-earth sabotage designed to spread like a communicable disease the dysfunction that has long characterized the legislative branch to the executive branch. Given the unrepentant nihilism, many political observers were quick to pen their epitaphs for the Obama Administration after the 2014 mid-term elections, opining that little progress would be made during the final two years in office, particularly where public safeguards and environmental protections were concerned.
But something funny has happened over the last year. To the dismay of congressional Republicans and their corporate benefactors, the Obama Administration has had one of the most productive years of any president in recent memory, at least on the regulatory front, securing critical new safeguards for people and the environment that will continue to deliver such benefits as cleaner air and safer food for decades to come.
For many, the lesson to be learned is that there’s one obstacle even this kamikaze Congress can’t overcome: the will of previous Congresses. Populated by statesmen who put the public interest ahead of ideological purity, today’s congresional forebears were able to forge through hard work and hard-fought compromises meaningful legislative solutions to real problems, like the Clean Air Act and the Clean Water Act. And, even if later Congresses proved fallow, their work still endures, providing a fertile ground for sowing the seeds of progress. All that is required is a president who is willing to take responsibility and put those laws into action.
Last November, following the mid-term elections, a group of us here at the Center for Progressive Reform recognized this lesson and pushed the Obama Administration to dedicate maximum energy in its remaining months in office to the pursuit of an ambitious regulatory agenda that would ensure long-lasting protections for the American people and their environment. In particular, my coauthors and I identified 13 essential regulatory actions addressing public health, consumer and worker safety, and environmental protection that could and should be achieved well before the end of Obama’s last term in office. One year on, I’m pleased to report that the Obama Administration has achieved many of the items on that agenda, while moving to within striking distance of several others.
The journey along this past year’s path to progress produced many highlights, including the following:
- Perhaps the signature accomplishment of President Obama’s second term has been the completion of a set of national performance standards to limit greenhouse gas emissions from existing and future power plants. The rule for future power plants is somewhat weaker than what the Environmental Protection Agency (EPA) initially proposed, requiring that coal-fired power plants meet 1,400 pounds of carbon dioxide per megawatt-hour (as opposed to 1,100 pounds of carbon dioxide per megawatt-hour). This standard would still seem to require these plants to adopt some form of carbon capture and sequestration. The overall goal of the existing power plants rule was strengthened to mandate a 32-percent reduction of greenhouse gas emissions by 2030 as compared to 2005 emission levels. (The proposal called for 30-percent reduction.) While the final existing power plants rule does delay somewhat states’ initial compliance obligations, potentially postponing cuts on greenhouse gases, it also includes new provisions aimed at encouraging the development of renewable resources, which promises to deliver greater climate benefits over the longer term. Together, these rules will go a long way toward de-carbonizing the U.S. economy. They also appear to be playing a key role in encouraging other countries to come to the table to negotiate a meaningful international climate deal that could offer the last best chance for averting the worst consequences of global climate change. The rules are currently the subject of a fruitless challenge in Congress under Congressional Review Act, and they face several legal challenges in the courts, an inevitable step given the refusal by many in the GOP even to acknowledge climate change. As several CPR scholars explained in a recent Issue Alert, however, the rule’s legal foundation is strong enough to survive judicial review.
- The Obama Administration has also made huge strides toward safeguarding Americans’ food supplies by completing a series of rules under the Food Safety Modernization Act that aim to transform our food safety system so that it focuses on preventing foodborne illness rather than reacting to outbreaks after they occur. The first involve a pair of rules that require manufacturers of processed human and animal foods, respectively, to adopt what are known as “preventive controls.” These measures require food processors to identify potential hazards in the manufacturing procedures, implement steps to address those hazards, and document and report on the implementation of these steps. The system is far from perfect as it essentially involves a form of self-regulation with limited oversight from the Food and Drug Administration (FDA). Ultimately, successful implementation will depend on whether Congress provides the FDA with adequate funding to carry out its oversight responsibilities, which is likely to be the keystone in this new system. If done right, though, the rules have the potential to drastically reduce the incidence of foodborne illness outbreaks, which the Centers for Disease Control and Prevention estimate affect one in six Americans every year.
- More recently, the Obama Administration added another big piece to the revamped food safety puzzle when it finalized the produce safety rule earlier this month. As illustrated by recent recalls involving salmonella-contaminated spinach, fresh produce is a leading cause of foodborne illness. The rule would require farms meeting certain size thresholds to adopt new practices for how they grow, harvest, package, and store produce to prevent contamination. The measures range from improved hygiene for farmworkers to preventing contact between produce and animals. One potential concern with the final rule is that the FDA appears to have weakened quality and testing standards for irrigation water that is often a source of pathogenic contamination in produce. On the plus side, the final rule eliminates some of the exemptions that the proposal contained for certain kinds of produce, including Brussels sprouts and bok choy.
- The final step taken by the Obama Administration to overhaul our food safety system is aimed at improving the safety of imported foods—a segment of the U.S. food supply that has grown exponentially over the past couple of decades. As with the new approach to domestic food processers, this regulatory action in effect sets up a complex system of self-regulation for foreign-based food producers that import products to the United States. Generally speaking, systems of self-regulation rarely inspire much confidence. But, compared to the current approach—which is basically to do nothing (in 2011, for example, the FDA inspected only 2 percent of food imports and just 0.4 percent of foreign food facilities in 2011)—these new rules still represent a huge advance. And with more and more of the food on U.S. tables and store shelves coming from abroad, they are now more important than ever. (At least, 15 percent of U.S. food is imported, including 90 percent of our seafood and 60 percent of our fruits and vegetables.) One of the rules would require U.S.-based importers to verify that their foreign suppliers have adequate measures in place to prevent adulteration and contamination, while the second would create an independent auditing system through which foreign food facilities could become “certified” as complying with U.S. food safety standards. In the end, the success of this program will largely turn on whether Congress sees fit to provide the FDA with adequate resources to perform robust oversight of both the importers and the third-party auditors to ensure effective compliance.
- Regrettably, this past year, the Obama Administration has largely extended its disappointing track record on worker health and safety issues. The one notable exception, however, has been the EPA’s “worker protection rule,” which comprises one part of the regulatory action we urged the Administration to take to better protect safety and health of child farm workers. The final rule will provide enhanced protections for workers of all ages against the potential harms associated with agricultural pesticide use, but will be especially important for child workers who, due to key psychological and physiological differences, face a disproportionately greater risk of harm from pesticide exposures. The rule strengthens existing requirements for notification and training on pesticide-related hazards. Perhaps most importantly for protecting child workers, the rule sets a minimum age of 18 for pesticide handling activities. This represents an important improvement over the EPA’s original proposal, which would have set the minimum age at only 16.
Unfortunately, this past year’s journey along the path to progress also had its disappointments, with a few of the regulatory actions that the Obama Administration completed falling short of what is needed to ensure adequate protections for people and the environment. Among the 13 regulatory actions identified in our report, the most disappointing final rules included the following:
- When it comes to regulatory safeguards, perhaps the single greatest missed opportunity of the Obama Administration was the failure of the EPA to follow its science advisors and finalize a stricter national ozone air pollution standard at no greater than 60 parts per billion (ppb). Instead, the Administration appeared to bow to political pressure and set the standard at the least protective standard—70 ppb—that it considered. According to the EPA’s own analysis, this weaker standard will lead to hundreds more premature deaths and hospital admissions, thousands more asthma attacks, and hundreds of thousands of more missed work and school days. The science was clear, so we must surmise that the Administration concluded that the political cost of saving those lives was greater than it cared to pay.
- The EPA’s final “Waters of the United States” rule provides another high profile example of the Obama Administration seemingly caving to political pressure by adopting a safeguard that is far weaker than what is called for under existing law and the best available science. Contrary to the claims of industry opponents and their allies in Congress, the final rule appears to actually reduce the scope of the Clean Water Act’s protections as compared to historical practice, while expanding exemptions for mining and industrial agricultural and livestock operations. Environmentalists are among those challenging the rule in court, where they face the difficult task of persuading a judge to remand the rule to the EPA to strengthen its provisions without having the rule struck down in its entirety.
- The Department of Transportation’s final crude-by-rail safety rule turned out to be a mixed bag, but on balance its weaknesses far outweigh its strengths. The biggest plus of the rule is that it will require trains to adopt advanced braking systems that will significantly reduce the risk of crashes and derailments. Unfortunately, the rule also sets an unacceptably slow phase-in period by which railroads must replace their older unsafe tank cars. The rule also makes it easier for certain kinds of high hazard trains to operate in high density urban areas, where a derailment or crash involving an oil train could quickly turn into an enormous catastrophe.
- The less that’s said about the EPA’s final coal ash rule, the better. In an exercise that exemplifies all the worst features of the U.S. regulatory system, the agency adopted a final rule that largely incorporated all of the electric utility industry’s demands—or at least as much as it could plausibly get away with within the constraints of the Resource Conservation and Recovery Act (RCRA). The rule treats the massive waste stream, which is rife with carcinogens and other toxic components, as if it were no different from ordinary household trash. Aside from the occasional citizen suit, states will be in the drivers’ seats when it comes to overseeing industry’s compliance with the rule’s feeble provisions. (Evidently, even the possibility of citizen suits is too much for the coal industry’s boosters to countenance, as they are now engaged in a campaign to enact legislation that would remove this one last hope for ensuring protection.) With most of the states where coal ash ponds are located seeing themselves as friends of the electric utility industry, oversight will no doubt be ineffective and sporadic. Worse still, the final rule does almost nothing to address the problem of legacy coal ash ponds, which will be allowed to continue to pollute groundwater for the foreseeable future.
- Also disappointing was the EPA’s final electronic reporting (eReporting) under the Clean Water Act’s National Pollutant Discharge Elimination System (NDPES) program. This rule should have been a relatively straightforward undertaking; it simply sought to modernize how the paperwork for NDPES permit implementation was carried out, an effort that promises to save the EPA, partner state environmental agencies, and permit holders lots of money and time. Instead, the rule was subject to years of inexplicable delay, and when it did finally emerge from the rulemaking gauntlet, it was revised to postpone and delay several of the key compliance deadlines by several years. As a result, it will be a long time before the already resource-starved EPA is able to see any benefits from the rule.
- Of course, it’s hard to complain about how these final rules turned out, given that some have been in the works for several years and were at risk of never seeing the light of day at all. Still, President Obama has long portrayed his administration as one that would help to protect the American people against those threats against which they cannot protect themselves alone. So, it is only proper that his administration should be held to a higher standard on these issues. It is likely that historians, and perhaps even President Obama himself, will count these missed opportunities as among the greatest failures of the Obama Administration.
In the final analysis, this past year will go a long way toward ensuring President Obama’s legacy as one of the most successful presidents when it comes to safeguarding people and the environment. However, in spite of these successes—or perhaps because of them—the failure of the Obama Administration to provide the strongest regulatory protections possible in other areas will leave a bitter aftertaste