Last April, the Center for Progressive Reform issued a white paper in which a group of CPR Member Scholars and CPR Policy Analysts identified 12 key health, safety, and environmental regulatory actions slowly working their way through the Obama Administration’s regulatory pipeline. In the white paper, Twelve Crucial Health, Safety, and Environmental Regulations: Will the Obama Administration Finish in Time?, the authors warned that the Administration’s failure to adopt a sense of urgency with respect to completing its work had opened the door to the very real prospect that nine of the twelve regulatory actions might get caught up in the backwash of the 2012 presidential campaign, and indeed might never be completed by the current Administration. Judging from the Administration’s recently released regulatory agenda, all or part of nine of these actions will not go into effect during this presidential term.
Nearly ten months later, that grim prediction is coming true. For all intents and purposes, the Administration seems to have shut down its regulatory machinery, evidently unwilling to advance significant regulatory initiatives for fear that they could adversely affect the President’s chances of being reelected. Although presidents are typically sensitive about endorsing controversial rules during the summer and fall immediately preceding an election, two aspects of the Obama Administration’s behavior are unusual. First, the Obama Administration’s effective “moratorium” on controversial rules seems to have begun months earlier than it has during past administrations, and in certain notable cases–for example, the Environmental Protection Agency’s (EPA) proposals to curb ozone pollution and make coal ash disposal sites safer–took hold as much as a year before the national election. Second, the list of rules bottled up by the Administration’s over-cautiousness includes long-overdue and relatively straightforward proposals–for example, a rule to mandate safe manufacturing practices for infant formula.
The price Americans are paying for the Administration’s unwillingness to proceed apace is high, both in the near and long term. The Administration’s failure to meet its own deadlines on just two of the rules (one regulating toxic air pollution from industrial boilers and process heaters, and the other restricting ozone pollution) will cost an estimated 6,500 to 17,967 premature deaths, 9,867 non-fatal heart attacks, 3,947 cases of chronic bronchitis, and more than 2.3 million lost work and school days. Those are the costs of projected delays the Administration now acknowledges. If the rules fall further behind schedule, the toll imposed by delay will mount. And if the rules are eventually scuttled or significantly weakened, even more people will die prematurely or suffer ill health, and an even greater cost will be imposed on the economy.
The Administration’s failure to adopt these rules in a timely way raises several unappealing scenarios. If the President is defeated for reelection and his Administration fails to issue these rules before departing, it will leave the task to a new President almost certain to be less inclined toward vigorous safeguards. Likewise, in the event President Obama loses in the election, even those regulations that are completed during the last few weeks or months of the current term would not necessarily be safe from political gamesmanship. The new President and the next Congress each have legal mechanisms available for halting implementation or overturning them outright. Finally, even if the President is reelected, the possibility remains that, having chosen not to expend political capital on the rules during the election, the President will be reluctant to embrace new and potentially controversial rules anytime soon, for fear that they might interfere with his other policy priorities during his second term. Under any of those three scenarios, the cost in lives, health, and economic activity are unacceptable.
This CPR Issue Alert returns to the 12 critical regulatory actions we identified in our previous white paper, using the Administration’s most recent regulatory agenda as a gauge of how much progress the Administration is likely to achieve in advancing them over the course of 2012.
The agenda reveals a number of important things:
- All or part of 10 of these 12 regulatory actions have been delayed beyond the timelines stated in the last regulatory agenda issued in June of 2011.
- Seven of the regulatory actions have no chance of going into effect until well after the November election.
- Persistent delays have left three other regulatory actions in grave danger of not going into effect until after the November election; if the Administration does not move these matters ahead immediately, their fate will be sealed.
- The two remaining regulatory actions have only been partially completed. In September of 2011, the EPA and the National Highway Traffic Safety Administration (NHTSA) jointly completed the Corporate Average Fuel Economy (CAFE) standard for heavy duty vehicles and trucks, which will significantly reduce their greenhouse gas emissions. (This is one component of a set of rules aiming to reduce greenhouse gas emission from mobile sources.) In February of 2012, the U.S. Army Corps of Engineers completed its nationwide dredge-and-fill permit for strip mining operations, which will help reduce the harmful environmental impacts mountaintop removal mining. (This is one component of a set of rules aiming to reduce the harmful human health and environmental impacts of mountaintop removal mining.)
- The delayed rules include both major, albeit controversial undertakings with significant potential to save lives–e.g., the EPA’s rule to limit toxic air pollution from industrial boilers and process heaters–as well as more minor, but straightforward and long overdue proposals–e.g., the Mine Safety and Health Administration’s (MSHA) Pattern of Violations and the Food and Drug Administration’s (FDA) Good Manufacturing Practices for infant formula.
Whose Fault Is That?
The blame for the failure to complete work on these regulatory actions falls primarily on the Administration. It has had plenty of time to proceed in an orderly way while affording stakeholders and the public ample opportunity for input. In fact, some of the regulatory actions have been in the works for decades. For example, Congress directed the FDA to issue a rule establishing Good Manufacturing Practices for Infant Formula more than 25 years ago.
Of course, the Administration has faced considerable obstacles, including unyielding opposition to vigorous safeguards from lobbyists for regulated industries and congressional Republicans The leadership of the U.S. House of Representatives, for example, has advanced a series of bills designed to undermine agencies' work to adopt regulations to implement such longstanding statutes as the Clean Air Act, the Clean Water Act, and more. Perhaps more important, they made opposition to regulation a centerpiece of their efforts to blame the nation's economic conditions on President Obama, conveniently ignoring the fact that the economic crash of 2008 was brought on primarily by deregulation, not overregulation.
Nevertheless, the Administration had the power to complete its work on the regulatory actions. But the Administration – the President, really – apparently either lacks the stomach to fight for the safeguards or has made the political calculation that the fight is not worthwhile. He has repeatedly surrendered rhetorical ground to anti-regulatory advocates, belittling the work of his own regulatory agencies with speeches and op-eds about so-called “dumb” or “unjustified” regulations. In the case of last year's proposed CAFE standards for automobiles, the White House boasted of its work subverting the regulatory process by entering into behind-closed-doors negotiations with industry rather than allowing the EPA and the National Highway Traffic Safety Administration (NHTSA) to promulgate regulations, as called for by statute. Subsequently, the President himself overruled EPA Administrator Lisa Jackson on a new, more vigorous, and desperately needed ozone regulation – after the President's Chief of Staff took part in a meeting with industry on the subject hosted by the White House Office of Information and Regulatory Affairs (OIRA).
More generally, OIRA has been a major stumbling block for health, safety, and environmental safeguards. Under the leadership of Administrator Cass Sunstein, its small staff of some 30 economists has continued the George W. Bush OIRA practice of serving as a court of last resort for regulated industry. A recent CPR report demonstrated the huge imbalance in the lobbying meetings OIRA takes, keeping an “open door” policy that in practice means hearing from industry lobbyists five times as frequently as from public interest advocates. As troubling, OIRA continues to ignore the prescriptive limits of its own Executive Order-mandated deadlines that require completion of its review within at most 120 days. It also continues to exercise power that exceeds the limits of its own Executive Order by weighing in on agency regulatory issues on which it lacks authority (e.g., guidance documents and other non-rulemaking activities). These practices operate to intimidate and undercut regulatory agencies and otherwise politicize the regulatory process under the guise of conducting economic analysis.
Two of the twelve critical regulatory actions are in OIRA's custody and have been for several months. The EPA's chemicals of concern list has languished for more than 20 months, while its New Source Performance Standards regulating greenhouse gas emissions from power plants has been stalled at OIRA for over three months.
Two examples of OIRA exceeding the authority granted it by its own Executive Order are its assertion of authority to review the EPA's guidance on the application of the Clean Water Act to mountaintop removal mining practices (which was under review at OIRA for over three months) and the EPA's guidance defining the scope of the Clean Water Act (which was under review at OIRA for more than four months). The Executive Order does not give OIRA authority to review guidance documents; OIRA simply asserted it.
Finally, another important reason that the Administration is failing to adopt these critically needed regulations is that the regulatory agencies themselves have been starved of resources to the point that they are unable to meet some statutory deadlines. The Administration is not solely to blame for that circumstance, of course. Regulatory work, including enforcement, has been badly underfunded for years, and the current political climate is such that Congress would be unlikely to increase funding for any regulatory activity. Nevertheless, the Administration has made no effort to make the case for such funding, and indeed it has piled other work on regulators that has surely distracted from their pressing work, most notably the Administration's much touted regulatory “look-back” initiative.
Notwithstanding these obstacles, the Obama Administration has succeeded in completing a few regulatory actions that were not featured in CPR's 12 Rules white paper. The most significant of these are the EPA's Utility MACT rule (not to be confused with the Boiler MACT rule), which will significantly reduce toxic air pollution from coal-fired power plants, and the EPA's and NHTSA's earlier CAFE standard for cars, applicable to model years 2012 through 2016, which will significantly reduce greenhouse gas emissions from cars produced over the next few years.
By and large, though, the Obama Administration has consistently delayed critical environmental, health, and safety regulations–including several that were not featured in CPR's 12 Rules white paper. For example, OIRA has prevented the Occupational Safety and Health Administration (OSHA) from making progress on the long-delayed update for its standard limiting worker exposure to silica dust, which causes silicosis, a debilitating and ultimately fatal respiratory disease. The draft proposal, which has been in the works for more than 14 years, has been under review at OIRA for more than a year. More recently, NHTSA announced that it would be delaying until at least the end of 2012 a final rule that would require car companies to include rearview cameras–a safety feature intended to prevent drivers from inadvertently backing over children and other pedestrians–in all new cars manufactured after September of 2014. The agency estimates that the rule would annually prevent more than 100 deaths and several hundred more severe injuries. By law, NHTSA was supposed to complete the rule by February of 2011. The agency missed this deadline, and, then, this past January, the head of the Department of Transportation testified before Congress that the rule would be completed by the end of February of 2012. Even if NHTSA does complete the rule by the end of December of 2012, it will still be nearly two years behind schedule.
All in all, the Administration continues to demonstrate a conspicuous lack of urgency, a problem that is all the more troubling because time is running out.
The Obama Administration's newly released regulatory agenda reinforces fears that the Administration will simply not complete its work on a number of vital safeguards for health, safety, and the environment on a timeline that would protect the rules from being undone by Congress or a new Administration. Such a scenario is exactly what CPR warned about in its April 2011 report expressing concern about the Administration's lack of urgency in moving on key regulations stuck in the pipeline.
Following are progress reports on each of the 12 rules identified in CPR's original white paper, factoring in the timeline implications of the Administration's newly released regulatory agenda.
Due to be finalized sometime this April, this suite of three interrelated rules will require owners and operators of industrial and commercial boilers and incinerators to significantly reduce their emissions of mercury, lead, cadmium, polycyclic organic matter (POM), and other toxic air pollutants. The rules are on target to be completed before June of 2012, even though the EPA improperly delayed their completion by almost a year. After issuing final rules last May in the face of a court order, the EPA immediately and indefinitely stayed their implementation–in clear violation of the Clean Air Act–so that it could reconsider and weaken them to appease industry. Subsequently, the D.C. Circuit Court of Appeals ruled that the indefinite stay was illegal, and ordered the agency to begin implementing the original final rules immediately.
Despite that positive ruling, much damage has already been done. The original rules would not begin to go into effect until 2014, and by then the EPA will have already issued the reconsidered final rules, which, according to the proposals released in December 2011, now will not begin to go into effect until 2015. In effect, the EPA has circumvented both the law and a court order.
The human health costs of this one-year delay will be severe: An estimated 2,500 to 6,500 premature deaths, 4,000 non-fatal heart attacks, 1,600 cases of chronic bronchitis, and more than 310,000 lost work and school days –all preventable. The rules are also the target of several legislative attacks in Congress–including a possible rider on legislation to extend middle class payroll tax relief that would delay and weaken the rules. Likewise, if the EPA allows for any more delays, the completion of the rules may be pushed beyond June of 2012, leaving them potentially vulnerable to rescission through a Congressional Review Act resolution of disapproval. In short, despite the April 2012 timeline for completing these rules, their future is far from certain.
Ozone and Particulate Matter National Ambient Air Quality Standards
Ozone and particulate matter are common air pollutants that are harmful to human health and the environment. The Clean Air Act requires the EPA to review and update National Ambient Air Quality Standards (NAAQS) establishing permissible limits for these pollutants at least once every five years, but the agency has not conducted a proper review for the ozone and particulate matter NAAQS in nearly 15 years. The Obama Administration will have failed to right this wrong before this term expires. Neither of these important air quality standards will be completed before June of 2012–or anytime soon for that matter.
Of all of the Obama Administration's regulatory disappointments, the President's last-minute decision to abandon the final ozone NAAQS may be the most damaging. The Spring 2011 regulatory plan projected the completion of this rule for some time in August of 2011. Despite intense pressure from industry groups and congressional Republicans, the EPA appeared to be set to issue its final rule close to its scheduled deadline. Then, at the last minute, with the draft final rule still under review at OIRA, the President personally intervened and directed the EPA to scrap it. The Clean Air Act requires that the EPA only consider the protection of human health and the environment when setting NAAQSs, and forbids the agency from considering other factors such as costs or economic impacts. Nevertheless, in justifying its decision to abandon the new ozone NAAQSs, the Obama Administration cited specious concerns about the rule's costs and economic impacts.
Now, the public will have to wait until at least 2014 for an ozone standard that actually protects public health, as required by the Clean Air Act. The new regulatory agenda categorizes the rule as a “long-term action” and projects that a proposed update of the ozone NAAQS will not be completed until July of 2013, with a final rule to follow in April of 2014–nearly 17 years after the rule was last properly reviewed and updated. In effect, then, the President's personal intervention on the ozone NAAQS rule has delayed this critical regulation by at least an additional two years and eight months. According to the EPA's own estimates, this delay will result in a total cost of an estimated 4,000 to 11,467 premature deaths, 5,867 non-fatal heart attacks, 2,347 cases of chronic bronchitis, 2,053,333 lost work and school days, all of which could have been prevented. (The EPA's regulatory impact analysis for the rule found that a rule that lowered the ozone NAAQS to 70 parts per billion, which, according to testimony from EPA Administrator Lisa Jackson last September, was the agency's preferred option, would annually prevent between 1,500 and 4,300 premature deaths, 2,200 non-fatal heart attacks, 880 cases of chronic bronchitis, and 770,000 lost work and school days; the above numbers come from aggregating these figures over a time period of two years and eight months.)
Meanwhile, the new regulatory agenda categorizes the particulate matter NAAQS as a “long-term action” with the deadlines for issuing a proposed rule and final rules listed as “to be determined.” An agency lists a rule as a long-term action when it does not expect to take any major steps to advance the rule over the next 12 months, and thus regards the rule as a low priority in the short term. That the EPA regards the particulate matter NAAQS as a low priority is surprising. In 2009, the DC Court of Appeals ruled that the current standard–issued in 2006–was so weak that it violated the Clean Air Act, but it nonetheless ordered the EPA to continuing implementing it while it worked on developing a stronger standard. (In setting the 2006 particulate matter NAAQS, the George W. Bush Administration's EPA ignored the advice of its top science advisors on clean air issues–the Clean Air Science Advisory Committee–and adopted a standard that was much less protective of health than what the Advisory Committee recommended.) To make matters worse, because the Clean Air Act requires that NAAQS be reviewed and updated at least once every five years, the EPA was supposed to complete its review of the weak 2006 standard by October of 2011.
In an unexpected development, the EPA recently announced in court filings that it expected to issue a proposed new particulate matter NAAQS by June of 2012 with a final standard to follow in June of 2013. The EPA's online rulemaking gateway does not confirm this timeline, however. Under this schedule, the EPA would still be at least eight months late in completing its review of the weak 2006 standard, but it would mark the first time in 16 years that the standard was properly reviewed and updated — provided the President allows the rule to go into effect.
New Source Performance Standards to Reduce Greenhouse Gas Emissions from Petroleum Refineries and Power Plants
Petroleum refineries and power plants are the two largest stationary sources of greenhouse gas emissions, accounting for roughly 78 percent of greenhouse gas releases from all stationary sources. Swift action to reduce greenhouse gas emissions from these sources offers the best chance to avoid the worst consequences of climate change, including more droughts and heat waves, more intense hurricane events, accelerating rates of animal and plant species extinction, and the potential rapid migration of malaria and other vector-borne diseases to previously unaffected regions of the world.
In December of 2010, the EPA announced that it had entered a settlement agreement with environmental groups that committed the agency to issue New Source Performance Standards (NSPSs) to reduce greenhouse gas emissions from petroleum refineries and power plants. Notwithstanding the judicially enforceable timelines included in the settlement agreement, it appears increasingly likely that the EPA will not complete either of these rules on time.
In accordance with the terms of the settlement agreement, the latest regulatory agenda projects that the final petroleum refinery rule will be issued by November 2012, but that estimate is based on the assumption that the proposed rule will be issued by December of 2011. That date came and went without a proposal, and indeed, the EPA has still not yet issued a proposal, meaning it has already missed its deadline by nearly two months. To make matters worse, the EPA has not even sent the draft proposal to OIRA for review yet, a process that often takes several months to complete. Accordingly, the petroleum refinery proposal may end up being several months behind schedule by the time it is finally released. As the delays for the proposal mount, it becomes increasingly unlikely that the EPA will be able to issue the final rule by November 2012. Instead, the final rule likely will not be released during this presidential term. Indeed, an EPA spokesperson recently stated that the agency does not expect to issue a final refineries rule in 2012.
The NSPS rule for power plants faces a similar uphill battle. According to the revised terms of the settlement agreement, the proposal was supposed to be out by September of 2011, but the EPA did not submit the draft to OIRA for review until November, and the draft proposal continues to sit at OIRA at the present time. Despite these delays, the new regulatory agenda now projects that the proposal will be released by the end of January with the final rule to come out in June of 2012. The EPA has already missed the deadline for the proposal; the agency has now said that it is “on track to propose GHG standards for new power plants early this year . . . . We continue to work with OMB through the interagency review process and will issue the proposal when that review is complete.” EPA air chief Gina McCarthy reportedly said the proposal will be issued in February. Given that the proposal is now more than five months behind schedule, it seems highly unlikely that the EPA will be able to issue the final rule by June of 2012. Instead, it is more likely that the EPA will not issue a final power plant rule until well after the November election.
Corporate Average Fuel Economy (CAFE) Standards for Cars and Trucks
In the United States, mobile sources such as cars and trucks account for more than one-quarter of the nation's greenhouse gas emissions. Again, it will be impossible to avoid the worst consequence of climate change without significantly reducing greenhouse gas emissions from mobile sources. During the Obama Administration, the EPA and the National Highway Traffic Safety Administration (NHTSA) have worked together to develop two corporate average fuel efficiency (CAFE) standards to separately reduce greenhouse gas pollution from cars and trucks. These agencies have already completed one of these standards, the truck rule, but they are unlikely to complete the other standard–the car rule for model years 2017 through 2025–on time.
The EPA issued the final CAFE standard for trucks and heavy-duty vehicles in September of 2011. This is the one of two critical rules identified in the CPR report that the Obama Administration has completed so far, and it is an important accomplishment. The EPA and NHTSA estimate that the rules, which apply to model years 2014 through 2018, will save around 530 billion barrels of fuel and avoid around 270 million metric tons of greenhouse gas emissions over the lifetime of the affected vehicles.
The second CAFE standard for cars applicable to model years 2017 through 2025 has been delayed since the last regulatory plan. In the Spring 2011 regulatory agenda, the EPA and NHTSA had projected that their car rule proposals would come out in September of 2011, but they were not issued until December. The Spring 2011 regulatory agenda did not list a projected date on which the EPA and NHTSA anticipated issuing their respective final car rules. (NTHSA's regulatory agenda states that they are under a statutory deadline to issue their part of the rule by April of 2015, but the two agencies will likely finalize their respective parts of the standard well before that. The EPA issues its part of the car rule pursuant to a different statute than does NHTSA, and thus is not subject to the April of 2015 statutory deadline that applies to NHTSA.) The EPA's new regulatory agenda projects that the agency will issue a final car rule by August of 2012. (NHTSA's regulatory agenda does not make a similar projection, but instead lists the April of 2015 statutory deadline again.)
Only time will tell if the EPA and NHTSA are able to complete the final CAFE standards for cars by August of 2012 as the current regulatory agenda projects. Even if they do, though, the standards would be at risk of rescission by a Congressional Review Act resolution of disapproval.
Scope of Clean Water Act Guidance and Rulemaking
For years, the EPA has struggled to define clearly the scope of its authority under the Clean Water Act to safeguard interstate wetlands and other isolated waters. Largely the result of two muddled Supreme Court decisions, this situation leaves many critical waterbodies inadequately protected and wastes scarce agency resources. To remedy this situation, the EPA began developing a draft guidance document clarifying the agency's interpretation of the term “waters of the United States,” which defines the scope of the agency's regulatory authority. Generally speaking, this draft guidance document defines the scope of the Clean Water Act more broadly than does the current guidance document on the subject, which was issued during the George W. Bush Administration, and thus would afford protection under the Clean Water Act to a greater area of wetlands and other isolated waters. The EPA appears to be near completing the guidance, having submitted the draft final guidance to OIRA for review in February of 2012.
In March of 2011, the agency began a parallel rulemaking process to formally codify the guidance document. This rulemaking is critical, because, unlike the guidance, the terms of the rule would be legally binding. The EPA will not complete this rulemaking before the current presidential term expires. The EPA's online rulemaking gateway projects that a proposal will be issued in March of 2012, a strikingly optimistic projection, particularly because the draft proposal has not yet been sent to OIRA for review. This optimistic projection also contrasts with the agency's regulatory plan, which categorizes the rule as a “long-term action,” and which lists the timeline for issuing a proposal as “to be determined.” This usually indicates that the agency does not anticipate making any progress on the proposal in the next 12 months. By any reasonable estimate, it will be several years before the EPA completes a final rule codifying its guidance on the definition of the scope of the Clean Water Act.
National Stormwater Program
Stormwater is a ubiquitous source of water pollution, channeling a highly polluted cocktail of motor oil, lawn fertilizer, pet waste, and other contaminants directly into lakes, rivers, and estuaries around the country. Stormwater is the leading source of pollution in many of the nation's impaired waterbodies, and unless it is properly controlled, these waterbodies will continue to be unfit for drinking, recreation, or animal habitat. The Obama Administration launched a rulemaking to strengthen existing stormwater controls, but the effort will likely not be completed during the current presidential term.
The Administration's Spring 2011 regulatory agenda projected that the EPA would issue a stormwater proposal in September of 2011, but the Fall 2011 regulatory agenda pushed that release date back by four months to January of 2012. Despite this delay, the new agenda still projects that the EPA will issue a final rule by November 2012. The EPA has already missed the January deadline for issuing the proposal, and the proposal is unlikely to come out for several months still, since the agency still has not submitted the draft proposal to OIRA for review. Given this delay, the EPA is unlikely to issue a final stormwater rule before the current presidential term ends.
Mountaintop Removal Mining Rules
Mountaintop removal mining is a highly destructive process that decimates fragile mountain ecosystems and streams and threatens the health and wellbeing of entire downstream communities. Three agencies–the EPA, the Department of the Interior, and the U.S. Army Corps of Engineers–share primary regulatory oversight for mountaintop removal mining. For years, their oversight has been woefully inadequate. Consequently, during the Obama Administration, these agencies launched a coordinated program to enact new controls that could significantly reduce the harmful public health and environmental impacts of mountaintop removal mining. Two of this program's three components–a rulemaking to codify the EPA's guidance on applying the Clean Water Act to mountaintop removal mining and the Department of the Interior's stream buffer rule–are not on track to be completed in time. The third component–the U.S. Army Corps of Engineer's nationwide general dredge-and-fill permit for mountaintop removal mining–has just been completed.
In July of 2011, the EPA issued its final guidance clarifying how the Clean Water Act Section 402 and Section 404 permitting programs should be implemented in the context of mountaintop removal mining activities. The CPR 12 Rules white paper urged the agency to initiate an expedited rulemaking to codify this guidance. Neither the latest regulatory agenda nor the EPA's online rulemaking gateway indicate that such a rulemaking has been initiated. Without a rulemaking already underway at this point, it would be impossible for the EPA to issue a final rule codifying its mountaintop removal mining guidance before the current presidential term expires.
The Department of the Interior's proposed stream buffer rule, which seeks to limit the circumstances under which mining companies can disturb land near ecologically fragile mountain streams, has been delayed again. Whereas the last regulatory agenda projected that the proposal would be released in December of 2011, the new regulatory agenda projects that the proposal rule will be issued in April of 2012. The new agenda projects no timeline for the final rule, however. The Department of the Interior has not yet sent a draft proposal to OIRA for review, so the April 2012 date for the stream buffer proposal is already doubtful. Even if the agency were able to issue a proposal by then, it would likely not be able to complete a final rule before the current presidential term expires.
The one component of the mountaintop removal program that has been completed is the U.S. Army Corps of Engineers' update of the nationwide general permit–Nationwide Permit 21–that governs the application of the Clean Water Act's Section 404 dredge-and-fill permitting program for certain kinds of surface mining operations, including mountaintop removal mining. The new regulatory agenda, as with the last one, projected that the final permit would be issued in December of 2011, but the Corps did not issue the permit until February of 2012–more than one month behind schedule. (After more than three months, OIRA completed its review of the draft final permit on February 13, 2012.) The effect of the permit is to exempt certain kinds of dredge-and-fill projects associated with surface mining from individualized and careful scrutiny by the Corps. Because these projects are so environmentally destructive–particularly those associated with mountaintop removal mining–it would have been preferable had the Corps decided not to issue a new nationwide permit, and instead mandated that all permits for surface mining-related dredge-and-fill projects be subjected to individualized review and approval. Fortunately, the new nationwide permit places much more stringent restrictions on the kind of dredge-and-fill projects that it will cover as compared to the existing nationwide permit, which is due to expire in March of 2012. Consequently, the new permit will enable the Corps to individually review and approve a larger universe of these projects before they can be undertaken, which should help to reduce their harmful environmental impacts.
Coal Ash Disposal
Coal ash–a byproduct of producing electricity by burning coal–contains arsenic, cadmium, lead, selenium, mercury, and other toxic contaminants, and is the single largest source of hazardous waste in the United States. A large loophole in the Resource Conservation and Recovery Act (RCRA), the federal statute that governs the disposal of hazardous wastes, has left coal ash waste unregulated for several decades. But in the wake of the catastrophic coal ash spill in Kingston, Tennessee, in 2008, the EPA launched a rulemaking to close that loophole.
The EPA's draft coal ash waste proposal ignited a firestorm of opposition among affected industries and their allies in Congress. While the draft proposal was under review, dozens of groups met with OIRA, urging it to force EPA to weaken the rule. After several months–well beyond the 120 days allowed by the Executive Order 12886–these lobbying efforts succeeded: In May of 2010, the EPA released a “co-proposal,” seeking comment on three separate standards, and leaving undecided whether it would regulate coal ash strictly as a hazardous waste or give states the authority to regulate coal ash weakly, as if it were no more dangerous than household garbage.
Almost two years later, it is all too clear that the EPA will not issue a final rule governing the disposal of coal ash waste any time soon. The new regulatory agenda confirms that the agency does not anticipate taking any steps to advance the rulemaking during the next 12 months; it categorizes the rule as a “long-term” action, and it lists the timeline for issuing a final rule as “to be determined.” The EPA is therefore unlikely to issue a final coal ash rule before the current presidential term expires.
Injury and Illness Prevention Program
Every year in the United States, between 4,000 and 5,000 workers die on the job, many tens of thousands more are severely hurt or afflicted with debilitating illnesses, and still tens of thousands more die as a result of the long-term consequences of injuries or illnesses that began on the job. Many of these injuries, illness, and deaths are preventable, but are not prevented because too many employers in this country have neglected their affirmative duty to provide their workers with a safe and healthy workplace, as required by the Occupational Safety and Health Act. During the Obama Administration, the Occupational Safety and Health Administration (OSHA) began developing the Injury and Illness Prevention Programs (I2P2) rule to require employers to develop and implement comprehensive health and safety management programs that are designed to find and fix all hazards in a workplace. OSHA will not complete this rulemaking before the current presidential term expires.
Work on the I2P2 rule has become so bogged down that OSHA is struggling to overcome the first procedural hurdle before it issues a proposal–namely, convening a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel. Under SBREFA, whenever OSHA is developing a rule that might impact a “significant number” of small businesses, it must give a panel of small business representatives a first chance at reviewing a draft of that proposed rule before it is released for public comment. The Spring 2011 regulatory agenda projected that OSHA would convene the SBREFA panel in June of 2011. After June came and went without the SBREFA panel process starting, the agency announced that this step in the rulemaking process would be delayed indefinitely.
The current regulatory agenda states that OSHA would convene the SBREFA panel in January of 2012. OSHA has already missed this deadline, and a recent Inside OSHA article reported that the agency plans to convene the SBREFA panel sometime in early March of 2012. The current regulatory agenda provides no date by which the agency expects to complete a proposal and final rule, indicating that OSHA does not plan to take such steps within the next 12 months. Under these circumstances, OSHA is unlikely to complete this rule until well after the current presidential term expires.
Pattern of Violations
As with most mining catastrophes, the tragic explosion at Upper Big Branch Mine that killed 29 miners in April of 2010 is fundamentally a story about a scofflaw mining company that repeatedly and willfully refused to take necessary steps to protect its workers. The “pattern of violations” provision of the Mine Safety and Health Act gives the Mine Safety and Health Administration (MSHA) enhanced enforcement authority to prevent scofflaw mines from putting their workers in harm's way. For more than two decades, the regulations implementing this provision have made it too difficult to bring scofflaw mines under the pattern of violations status. Following the Upper Big Branch Mine catastrophe, MSHA began developing new regulations for implementing the pattern of violations enforcement program, which would make it easier to hold serial violators of mine health and safety standards accountable and to compel mines to reduce significant and substantial violations.
MSHA issued a proposed pattern of violations rule in February of 2011, but it is unclear at the moment whether MSHA will be able to finish the rule on time.
MSHA's latest regulatory agenda projects that this rule will be finalized in April of 2012. The agency has not yet submitted the draft final rule to OIRA for review, so this timeline is in danger of not being met. As noted above, the patterns of violations rule must be finished by June of 2012 to avoid the risk of it being rescinded by means of a Congressional Review Act resolution of disapproval. The rule is currently on track to meet this deadline, but any prolonged delays at this point would put the future of this rule in jeopardy.
Infant Formula Good Manufacturing Practices
Congress first directed the Food and Drug Administration (FDA) to issue a rule establishing stronger good manufacturing practices for infant formula in 1986–more than 25 years ago. This rule would ensure that infant formula meets certain minimal nutritional requirements as well as prevent Salmonella enterica, Enterobacter sakazakii, and other harmful bacteria from contaminating formula. Today, the rule could not be more important, with infant formula included in the diet of nearly 90 percent of all babies under six months of age in this country. Despite decades of delay, the rule appears to be on track to be completed in time.
The FDA's progress on issuing a final infant formula rule has been distressingly slow. The agency issued a proposal in 1996 and has undertaken no fewer than three public comment periods on the proposal–the most recent one of which ended in 2006. The Obama Administration should have pursued the completion of this rule with greater urgency, considering that infant formula was suspected in a recent string of bacterial infections in babies that killed two newborns and severely sickened two others. Though government health officials were never able to confirm whether infant formula was the cause of these infections, the infant formula rule could do a lot to restore the public confidence in this product.
The FDA's Spring 2011 regulatory agenda projected that this rule would be finalized by November of 2011. The agency's new regulatory agenda has since delayed the completion of the rule until March of 2012. The FDA still has not submitted the draft final infant formula rule to OIRA for review, so it is doubtful the agency can meet the March 2012 deadline. Barring any unforeseen lengthy delays, the FDA should be able to finish this rule in time. Any lengthy delays, however, might push the completion of this rule beyond June of 2012, which would put the rule at risk of being rescinded through a Congressional Review Act resolution of disapproval.
Chemicals of Concern List
Tens of thousands of industrial chemicals are used in commerce, and many pose risks to human health and the environment. The Toxic Substances Control Act (TSCA) charges the EPA with crafting and enforcing regulations to protect people and the environment from such harms, but significant flaws in the statute leave the agency with insufficient authority to place restrictions on chemicals that are discovered to be harmful. Nevertheless, one provision in TSCA authorizes the EPA to develop a list of “chemicals of concern”–that is, chemicals that the agency has determined “may present an unreasonable risk of injury to health or the environment.” The chemicals of concern list provides the EPA with a mechanism to at least warn the public about the dangers posed by toxic chemicals so that they may take steps to protect themselves. The EPA has drafted a proposed rule that would add a category of eight phthalates, a category of polybrominated diphenyl ethers (PBDEs), and bisphenol A (BPA) to the TSCA Chemicals of Concern list, but the agency will not able to complete this regulatory action before the current presidential term expires.
The EPA's Spring 2011 regulatory agenda projected that the proposed chemicals of concern list rule would be issued in June of 2011. The current regulatory agenda now projects that the proposal will be issued in March of 2012. This astounding nine-month delay is entirely attributable to OIRA interference. The draft proposed rule has been stuck at OIRA since May of 2010–more than 15 months beyond the 120-day limit that Executive Order 12866 places on OIRA for conducting such reviews. Given the hold at OIRA, it seems unlikely that the EPA will be able to issue the proposal by March of 2012. The new regulatory agenda does not project a timeline for a release of the final chemicals of concern list, which suggests that the EPA is unlikely to take this step within the next 12 months.
What Does the Future Hold for These 12 Critical Regulatory Actions?
Because the protection of public health, safety, and the environment has become a divisive, partisan issue, the future of virtually all of these regulatory actions will ultimately depend on the outcome of the November 2012 presidential and congressional elections. All of the candidates for the Republican presidential nomination have attacked regulation generally, particularly where the EPA is involved, and several have made the issue a central argument in their campaign stump speeches. Any of these candidates, were they to secure their party's nomination and eventually prevail in the general election, would likely make it a top priority to cease work on any of the Obama Administration's unfinished regulatory business. As such, all or part of six of the twelve regulatory actions discussed above–including the ozone and particulate matter NAAQSs; the Clean Water Act scope rule; the mountaintop removal mining guidance and the stream buffer rules; the coal disposal rule; the I2P2 rule; and the chemicals of concern list rule–would almost certainly be among those regulations that would be halted, perhaps indefinitely. To the extent that a Republican presidential administration decided to pursue any of these regulatory actions–perhaps as a result of a binding settlement agreement or consent decree–it would likely advance rules that are considerably weaker than those currently being contemplated now, much as when the George W. Bush Administration sought to promulgate ozone and particulate matter NAAQSs that were so weak that the reviewing courts determined that they violated the Clean Air Act.
The results of this fall's congressional elections could play a huge role, too. During the last two years, Congressional Republicans have repeatedly but unsuccessfully sought to employ the Congressional Review Act to rescind protective environmental, health, and safety regulations. The prospects for Congressional Review Act resolutions of disapproval–which must pass both houses of Congress and be signed by the President–would be considerably improved if Republicans controlled both houses of Congress. All or part of three of the twelve regulatory actions discussed above–including the NSPSs limiting greenhouse gas emissions from petroleum refineries and power plants, the next CAFE standard for cars, and the stormwater rule–would certainly be in danger of rescission under this scenario. Further unnecessary delays could put three more of the twelve rules–the boiler MACT rule, the patterns of violation rule, and the infant formula rule–into this precarious situation as well.
Even if President Obama is reelected, completion of the rules we have identified is hardly guaranteed. Across a range of regulatory issues, the Obama Administration has demonstrated that it is frequently unwilling or unable to advance critical safeguards in the face of stiff political opposition. The political calculations are different during a second presidential term, but the politics will not disappear from the equation. If the President's team has concluded that vigorous pursuit of regulatory safeguards is bad politics, and that it is unwilling to expend political capital on them, there is good reason to worry that the Administration will never develop the stomach to promulgate and defend these rules.
That is exactly why the Administration's failure to adopt these rules in a timely way is such a tragedy. For the entirety of the Bush Administration, badly needed regulations languished, bottled up by political appointees disinterested in inconveniencing industry. President Obama promised new vigor on the regulatory front, and has delivered on that promise in some areas. But in others, including many of the rules highlighted in this report, the Obama Administration has simply failed to move with the necessary sense of urgency. For the tens of thousands of Americans whose health and livelihoods are threatened by these delays, the legacy of these unforced errors is steep indeed.