By CPR Member Scholar Rena Steinzor and CPR Policy Analyst James Goodwin, published March 2012
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:
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.