by CPR President Rena Steinzor, and CPR Senior Policy Analysts James Goodwin and Matthew Shudtz, and CPR Policy Analyst Anne Havemann
How will history judge the legacy of President Barack Obama? As he waited for his first inauguration, the newly elected president summoned presidential historians to his Senate office to help him conceive of a framework for that legacy, daring to dream about the unique and exceptional contribution he would make to the quality of life of most Americans. Six years later, despite significant achievements, several of the most important components of his stated agenda seem to be beyond his reach. But the President still has a lot he can do, as well as a significant amount of time left for these accomplishments. He won’t leave office for two years yet, and he wields enormous power over the myriad policy matters within the purview of the Executive Branch, unrestrained by congressional gridlock.
In his 2013 and 2014 State of the Union addresses, the President declared his intention to use his executive authority more aggressively, particularly in areas where Congress has demonstrated repeatedly that it will not act. The President has ample legal authority to pivot toward such affirmative steps, regardless of attempted congressional interference, and his determination to take such steps is both crucial and smart. The more policies and rules the President is able to get on the books now, the harder it will be for his opponents to unravel his contributions later.
In no area are the opportunities greater than with respect to protecting public health, safeguarding worker and consumer safety, and preserving the environment. Distracted by the increasingly hysterical drumbeat of conservative rhetoric about a supposed “tsunami” of regulations, the White House has barely scratched the surface of what regulatory actions could do to deliver on the promise made in the President’s second inaugural to “care for the vulnerable, and protect [our] people from life’s worst hazards.”
The American people are in dire need of such care, and federal agencies have already expended thousands of hours compiling the evidence needed to deliver them. What has been missing, and what needs now to come into play, is a sense of urgency and the political will—the President’s, in particular.
This Issue Alert identifies 13 essential regulatory actions that agencies are working on right now, all of which can and should be done before the President leaves office. These rules come out of the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), the Department of Labor, and the Department of Transportation. All are now years overdue, particularly considering the very serious health, safety, and environmental effects they address. Each day, people get ill and too many die because earlier Administrations dragged their feet on these problems. If President Obama wants a legacy that delivers on the core domestic policy promises of that second inaugural address, he should carry these overdue proposals across the finish line, not at the very last minute but in time to avoid their further delay or potential undoing by a succeeding administration that may be hostile to protective safeguards.
Unfortunately, legacies are made real not by inspiring speeches but by concerted, well-organized, and hard-driving action, characteristics that, in the regulatory arena, have not been evident for many years. In fairness, when President Obama took office, the agencies we depend upon to protect the most vulnerable were already hobbled by eight long years of abuse and neglect during the George W. Bush Administration. Yet the Obama Administration has too often left them hanging, without the resources they need to accomplish their rule-writing and enforcement missions. The President has allowed White House political operatives to overrule his senior agency heads, presumably so as to avoid inflaming political opposition from industry. Now that the President’s last mid-term election has come and gone, a window of opportunity has opened, offering barely enough time to put new regulatory safeguards in place that will make it difficult for a new president to destroy these vital components of a lasting Obama legacy.
Because time is short and so much work remains to be done, we recommend that the President appoint a senior White House advisor to be the point person to organize and ride herd over the considerable effort that will be required to make these and other rules final by no later than June 30, 2016. That person should be someone who has plenty of White House experience, and whose voice will command the respect of the agencies and the Office of Information and Regulatory Affairs, which often serves as a choke point for regulations. We choose that June 2016 date because it effectively immunizes the rules from repeal by a new president under the time frames set forth in the Congressional Review Act, should the Republican Party take control of the White House and hold both houses of Congress in the following November elections.
The President should direct the affected agencies to assign whatever staff is necessary to drive these rules forward to conclusion. All should be elevated to the same status as the climate change rules: do or die priorities for the President. For many of these regulatory actions, Congress will attempt to attach “riders” to any legislation moving through both houses that are designed to prevent the Obama Administration from completing the rulemaking process. The riders might accomplish this goal by repealing necessary legal authority, instituting impossible-to-meet rulemaking requirements, or prohibiting an agency from using its appropriated funds for working on the rule. In every instance, the President must commit to vetoing any legislation that contains an antiregulatory rider that would block any of these actions.
The “Essential 13” regulatory actions highlighted in the pages that follow include:
National performance standards to limit greenhouse gas emissions from fossil-fueled power plants. EPA rules that would reduce climate disrupting greenhouse gas emissions from new and existing fossil-fueled power plants by about 730 million metric tonnes, while annually preventing up to 6,600 premature deaths, 3,300 non-fatal heart attacks, 150,000 asthma attacks in children, and 490,000 missed school and work days by limiting other common air pollutants. The President has already committed to this rule, and so far it is on track, but along with the other actions explained here, the Administration should finish it in plenty of time, and not at the last possible minute.
Preventive controls for processed foods. FDA rules that would seek to prevent catastrophic foodborne illness outbreaks, such as the recent Salmonella-tainted peanut butter outbreak that killed nine people and sickened at least 714 others, by requiring foods processors to proactively identify and address hazards in the manufacturing process.
Produce safety. An FDA rule that would seek to prevent catastrophic foodborne illness outbreaks, such as the recent Listeria-tainted cantaloupe that killed 33 people and sickened at least 147 more, by establishing new minimum health and safety standards for farming practices that can cause produce contamination.
Imported food safety. With imports making up 15 percent of the food consumed in the United States, and with fewer than 2 percent of imported foods undergoing inspection, these FDA rules would help to prevent catastrophic foodborne illness outbreaks by requiring U.S.-based importers and foreign-based suppliers to ensure their products are meeting the same high safety standards that apply to U.S.-based facilities.
Silica standard. An OSHA rule to better protect the nearly 2 million U.S. workers exposed to dangerous levels of silica dust in the workplace that would require employers to implement silica dust controls, monitor their workers’ exposures, and provide improved employee training and medical surveillance.
National ozone air pollution standard. An EPA rule that would annually prevent up to up to 12,000 premature deaths, 5,300 nonfatal heart attacks, 58,000 cases of aggravated asthma, and 2.5 million missed school and work days by reducing the maximum allowable amount of ozone air pollution.
“Waters of the United States” regulatory definition. With wetlands and smaller water bodies providing habitat one-third of U.S. endangered or threatened species and supporting a seafood industry annually worth $15 billion, this EPA rule would ensure these waters are better protected by clarifying that they are covered by the Clean Water Act’s provisions.
Child farm-labor safety rules. To better protect vulnerable child agriculture workers, one of whom dies in a farming-related incident roughly every three days, these EPA and Department of Labor safeguards would prohibit children from taking on particularly dangerous farm work tasks and offer stronger protections against harmful pesticides.
Crude-by-rail safety standards. A Department of Transportation rule that would seek to prevent catastrophic train crashes involving any of the more than 415,000 rail-carloads of flammable crude oil traveling across the United States each year by requiring stronger tank cars, safer train routes for oil trains, and enhanced emergency response practices.
National stormwater pollution controls. An EPA rule that would seek to prevent harm caused by polluted stormwater, which is responsible for nearly 11 percent of all impaired rivers and streams across the United States, by requiring municipalities and the owners of industrial sites to take steps to manage runoff that flows from their lands into nearby water bodies and by extending these requirements to a greater number of municipalities and covered industrial sites.
Coal ash waste disposal standards. With most coal ash waste being dumped in old and poorly engineered impoundments across the country, this EPA rule would require power plants to better manage the more than 129 million tons of coal ash they produce annually in order to prevent contamination of adjacent ground and surface waters as well as catastrophic releases, such as the 1.1 billion-gallon coal ash spill in Kingston, Tennessee, which inundated 300 acres of land in a layer four to five feet deep, uprooted trees, destroyed three homes, and damaged dozens of others.
Concentrated animal feeding operation (CAFO) water pollution standards. With large-scale animal farms generating 500 million tons of manure each year, and with fewer than 43 percent of the facilities operating under Clean Water Act permits because of regulatory exemptions and insufficient state oversight, this EPA rule would better protect nearby water bodies from these operations by requiring them to follow necessary permitting requirements and adopt rigorous management practices for handling and storing their wastes.
To be clear, the choices of regulatory actions in this document reflect the reality that the Obama Administration has not seized the opportunity to challenge the fundamentally false assumptions that underlie the campaign to deregulate, except episodically and in the most rhetorical manner. This lack of vision has cost the President’s legacy and the American people dearly. So, for example, when conservatives shout that more rules have been produced by the Obama Administration than ever before, the White House counters with a set of tepid calculations that prove the meaningless fact that the Bush or Clinton Administrations made as many regulatory decisions. The White House apparently lacks the courage or the vision to explain that the rules that have been put in place will protect people and the environment from frightening harms. Because these benefits are never explained, because the issue is never really joined, the White House sacrifices the essential opportunity to explain why people need government and why protective regulations serve people and the economy, leaving some of the most important accomplishments of this presidency—most notably Obamacare—similarly lacking an organizing principle.
Because of these constraints and lack of vision, we find ourselves six years into the Obama Administration with a sharply constrained list of the possible. The best example is worker safety and health. Quite literally, President Obama could not have won the office without the strong support of organized labor, which no doubt lent its support in the expectation that the President would move aggressively in areas where his predecessor had not. And yet the possibility also exists that the Administration will close out eight years without producing a single important new rule to protect worker health and safety, instead waiting far too long to usher the lone contender—controls on silica dust—across the finish line. A far more ambitious agenda would have made both policy and political sense in 2009, but the passage of time has narrowed the horizon of possibility.
We can only hope that when he confronts this and similar instances of neglect, the President will deliver on his government’s power—as he said in his State of the Union speeches and on the campaign trail—to help people when they cannot help themselves.
This Issue Alert will examine each of the essential 13 regulatory actions individually, describing (1) why the regulatory actions are needed for protecting people and the environment, (2) the ongoing delays that have blocked their progress to this point, (3) what the final rules should say, and (4) the remaining steps that need to be taken to complete the rules. This examination will make clear that all of the rules will deliver important protections for public health, safety, and the environment and that completing the rules will be a relatively easy lift for the Obama Administration, provided that it brings to bear the necessary political will.