Cross-posted from Legal Planet.
The US Fish and Wildlife Service has completed its review of the status of the cute little American pika. The verdict is good news for the pika, at least as far as it goes and if FWS is right about the science. FWS has decided that the pika is not endangered or threatened because, according to FWS biologists, the pika is not as vulnerable to the impacts of climate change as has been believed. Unfortunately, the explanation FWS offers is not very persuasive.
Global warming threatens the pika in two different ways. Pikas are prone to overheating; they can die if exposed to temperatures as mild as 77°F (25°C) for several hours. Hiding under and between the rocks in a talus field helps them keep cool, but if air temperatures get too hot, even those refuges won’t be cool enough in the summer. Ironically, global warming could also cause pika to freeze in the winter. The snowpack provides insulation for their talus homes. If that snowpack is lost, as it will be if winter precipitation comes mostly as rain in the future, pikas could die of exposure. Pikas cannot respond simply by moving to colder locations because they are poor dispersers, they have highly specialized habitat requirements, and they already typically live near the tops of mountains. As a result, the pika are often described as one of the most likely species to be adversely affected by global warming. As J.B. Ruhl put it in a recent law review article, “The pika is toast.” Many others, including prominent pika biologists, agree.
Full textAfter laying dormant for decades, industries’ abuse of EPA’s permissive confidential business information program (CBI) is finally getting some serious attention. An investigation in the Milwaukee Journal Sentinel, and more recently articles in the Washington Post and Risk Policy Report; a report by the Environmental Working Group; and posts by Richard Denison at EDF, are turning the tide. Those of us at CPR who have spilled ink on various CBI problems over the years (i.e., Mary Lyndon, Tom McGarity, Sid Shapiro, Rena Steinzor, and myself) are thrilled to witness how these journalists and environmental watchdogs have finally managed to budge EPA on its contemptible program.
One document that has been referenced in several recent reports, but that I think deserves further attention, is an extensive empirical study of EPA’s CBI program by a consultant, Hampshire Associates. EPA commissioned this study in 1992 to evaluate whether EPA’s CBI program was in need of reform. Hampshire Associates documented extensive abuse of the CBI program by regulated industry, particularly in regulatory programs in which EPA does not require any justification for a CBI claim. The report is particularly relevant to current debates because virtually nothing has changed in EPA’s CBI policies since 1992. Continued evidence of CBI overclaiming over the years (see pages 129-35 and 146-47 in this article, where David Michaels and I argue that EPA's CBI program is far too lax) suggests that, if anything, abuse of the CBI privilege may only be getting worse, rather than better since the Hampshire Associates' study.
Full textThis week the White House Office of Management and Budget (OMB) released its annual report to Congress on the costs and benefits of federal regulatory programs. For the policy wonks among us, the most intriguing part was a section on recommendations for reform of the OMB regulatory review process. Here we find hints of what might result from President Obama’s long-awaited overhaul of the executive order on regulatory impact analysis. Cass Sunstein – an eminent legal scholar and now head of the Office of Information and Regulatory Affairs (OIRA) within OMB – has written prolifically and powerfully on this subject and observers expect that the new executive order will bear his unmistakable imprint, shaking up what has been a long-calcified debate on the role of cost-benefit analysis in federal policymaking. If OMB’s annual report is any indication, they won’t be disappointed.
From Nudges to Shoves
OMB’s first major recommendation for reform is that agencies use more cognitive psychology, behavioral economics, and other social sciences in the crafting of regulations. This recommendation comes straight from the pages of Nudge, Sunstein’s popular book co-written with Dick Thaler. Nudge argues that conservatives and liberals should be able to agree on a wide variety of soft regulatory interventions – ones designed to alter the “choice architecture” for individuals in a way that improves well-being without directly forcing behavioral changes. My favorite example from Nudge involves the use of a painted fly image inside the urinals of men’s bathrooms, which apparently dramatically improves aim and thereby reduces cleaning costs. A more pertinent example is the use of an “opt-out” as opposed to an “opt-in” default standard for retirement savings programs, which can substantially enhance participation rates. The idea is that, for a variety of reasons, we underestimate our long-term savings needs. Altering the choice architecture in this way helps to overcome those cognitive limitations while still permitting individuals to opt-out if they desire.
These are fine policies as far as they go, but the question is . . . how far do they go? OMB writes that “[b]ehaviorally informed approaches can be applied in many domains, including financial regulation, public health, environmental protection, energy use, motor vehicle safety, and consumer protection.” But the effectiveness of nudges depends very much on context and goal.
Full textCross-posted from Legal Planet.
The National Oceanic and Atmospheric Administration has existed since 1970, but it has never had the direct imprimatur of Congress. According to Congressional Daily, Rep. Bart Gordon (D-TN), chair of the House Committee on Science and Technology has announced that an organic act for NOAA is one of his committee’s priorities for this year. NOAA authorization has been proposed many times over the past 40 years. Its time to finally get it done.
Why does it matter? NOAA’s existence does not depend on Congressional authorization, nor would an organic act necessarily change its substantive authority. But it could strengthen NOAA’s hand within the Department of Commerce, reinforce its environmental protection and science mission, and help attract and retain employees dedicated to that mission.
NOAA was created in 1970 by President Richard Nixon, through a document known as Reorganization Plan No. 4. There’s nothing wrong with that method of creation. Indeed, EPA was created the very same day in the very same way, through Reorganization Plan No. 3. NOAA’s problem is not really that it has never had Congressional authorization, but that unlike EPA it was not created as an independent agency, and its mission has steadily diverged from that of its parent Department of Commerce.
Full textEighty percent of the toys sold in the United States are manufactured abroad, the vast majority in China. Because China has no effective regulatory structure, these imports are notoriously dangerous for children. The most prominent example is toys coated with lead paint, made that way because in China, lead paint is actually cheaper than the safe variety because the Chinese have increased the mining of lead ore by 50 percent since 2001. (Let’s not even imagine what Chinese manufacturers are selling to their own people). But it’s not just lead-laden toys. Independent investigations also discovered that Chinese manufacturers were using a chemical coating on tiny glue dots sold as part of a craft set for young kids that metabolized into the date rape drug gamma hydroxyl butyrate by kids who ate them. Some did, and ended up in the hospital. And just this Christmas, scientists found the toxic chemical cadmium in the coating of a Rudolph the Red-Nosed Reindeer charm bracelet, again, courtesy of Chinese manufacturers.
We shouldn’t have to rely on the good intentions of Chinese manufacturers to make sure our kids’ toys are safe. And in fact, sparing us from such leaps of faith is the responsibility of the Consumer Product Safety Commission, which also has jurisdiction over 15,000 product categories and hundreds of millions of products sold annually, including everything from backyard barbecues to food processors to electric drills. In 1981, before President Reagan took office and did his best to smother health and safety agencies, the CPSC’s budget of $41 million supported 891 full-time equivalent (FTE) employees. Under President Obama’s FY2011 budget released yesterday, the agency will have 576 FTEs, at the shockingly modest cost of $118.6 million, a 0.3 percent increase over last year. That’s right, in FY 2011, 315 fewer employees at a cost of $118 million dollars, an amount so tiny by federal budget standards that it hardly makes a dent. In the intervening three decades, the U.S. population has grown from 229 million to 305 million – 76 million more consumers out there buying products whose safety is, unfortunately, not guaranteed.
Full textAs we feared, in an effort to save pitiably small amounts of money in the discretionary (non-military) portion of the budget, President Obama’s FY 2011 budget, announced today, shortchanges very real threats to public health. Case in point: the Food and Drug Administration’s ongoing struggle to improve the safety of the American food supply. (FDA regulates 80 percent of it; USDA regulates the 20 percent that is meat and poultry, and that is, if you’ll pardon, its own kettle of fish) Each year in the United States, food-borne illnesses cause 5,000 deaths, hospitalize 325,000, and sicken 1 million, and no realistic observer of the FDA’s efforts thinks they are remotely adequate. Yet the Obama budget increases total spending for the FDA’s food and drug missions by a paltry $80 million, barely a rounding error in the funds dispersed for the bank bailout.
Counting the fees the agency already collect for new drug approvals, $450 million in fees on tobacco companies, and $250 million in fees on food producers that are not yet approved by Congress, where the Senate has repeatedly stalled its consideration of food safety legislation, the FDA budget would be $3.7 billion. Even this seemingly impressive figure does not come close to getting the job done.
The Wall Street Journal quotes Bill Hubbard, a former FDA associate commissioner, saying it's "basically a flat budget" when inflation is considered. Hubbard heads the Coalition to Save the FDA, a highly unusual, bipartisan group that includes public interest, patient, and industry organizations as diverse as the Center for Science in the Public Interest, the Consumer Federation of America, and the Grocery Manufacturers Association.
Full textToyota is on the media offensive this morning, announcing that it has found the problem (sticking pedals, it says) and is fixing it. Some articles indicated NHTSA has signed off or given "clearance" for the plan, but Toyota specifically noted that while NHTSA had reviewed its plan, it has not "signed off" on it, as it doesn't have the power to do so.
Two articles in particular have raised further questions.
The LATimes published its investigation over the weekend, questioning whether sticky gas pedals are the whole problem:
Full textFederal vehicle safety records reviewed by The Times also cast doubt on Toyota's claims that sticky gas pedals were a significant factor in the growing reports of runaway vehicles. Of more than 2,000 motorist complaints of sudden acceleration in Toyota and Lexus vehicles over the last decade, just 5% blamed a sticking gas pedal, the analysis found.
What's more, the National Highway Traffic Safety Administration has conducted eight investigations into sudden-acceleration problems in Toyota vehicles over the last seven years, none of which identified a sticking pedal as a potential cause.
The EPA issued a new rule recently on nitrogen dioxide (NO2) -- but not before it was weakened by OMB. The consequences for the public health are real.
The possibility of OMB interference in the rule was first raised by Matt Madia of OMB Watch. He noted that EPA's draft final rule -- sent to OIRA for review on December 18 -- required all metropolitan areas with a population of 350,000 people or more to install a monitoring station for measuring NO2 emissions near a major roadway in the area. By the time OIRA completed its review on January 22, the minimum threshold for monitoring stations had been increased to one per 500,000 people. Troubling, to say the least.
We noticed a document that shines further light on what happened behind the scenes. The EPA had made its position clear, it turns out. In a January 20th email about the "500,000" proposal, Lisa Heinzerling, the EPA's Associate Administrator for policy, wrote, "EPA does not support the alternative threshold described in the email below." (Full disclosure: Heinzerling is a former Member Scholar of CPR. We found the e-mail in question ourselves.)
Full textThis post is the seventh and final in a series on the new CPR report Obama’s Regulators: A First-Year Report Card.
The White House can influence the performance of protector agencies by the way it structures the regulatory landscape in which these agencies operate. Specifically, it can adjust the contours of this landscape in ways that either encourage or discourage proactive and effective action by the protector agencies. The manner in which it manages the Office of Information and Regulatory Affairs (OIRA)—a small bureau within the Office of Management and Budget that oversees the president’s regulatory policy and reviews individual regulations—is particularly significant in this regard. During the Bush Administration, OIRA operated as a strong deregulatory force. During the first year of the Obama Administration, this obscure but powerful office too often continued on that path.
Under President Obama, OIRA has continued to provide agencies that are themselves major polluters, the Department of Defense, for example, and regulated industries with a venue in which they can attack regulatory agencies and their health, safety, and environmental regulation. As part of its implementation of the regulatory review process, OIRA hosts meetings on rules that it has under review, meetings that are attended by the agency developing the rule and interested stakeholders. So far, the vast majority of these meetings have involved representatives from regulated industries or polluting agencies complaining about proposals under development by the protector agencies. For example, in June, OIRA hosted a meeting in which Department of Defense representatives sought to pressure EPA into abandoning reconsideration of a Bush midnight regulatory decision not to regulate perchlorate—a toxic chemical used in rocket fuel—under the Safe Drinking Water Act. The Department of Defense opposes such regulation because it would impose substantial cleanup costs on the agency. The meeting appears to have worked, as EPA has taken steps to delay regulating perchlorate.
Full textWhen my children were growing up, they loved the “Where’s Waldo” book series. Each page had an illustrated picture chock full of people and objects; hidden somewhere among the mass of detail was a small picture of a cartoon character named Waldo. When the Toyota Motor Corporation announced this week that it was stopping the production and sales of several of its car models because of a dangerous problem with unintended acceleration, we had a “Where’s Waldo” scenario. The National Highway Safety Administration (NHTSA), the regulator which is supposed to protect the American public from this sort of event, is nowhere to be seen, hidden inconspicuously in the background, hard to spot because of its disturbingly minor role in the unfolding events.
As I wrote earlier, Toyota had previously announced that it would replace the accelerator pedals on about 3.8 million vehicles in the United States because the pedals could get stuck in a floor mat. In the meantime, Toyota advised owners to remove the mats to avoid the problem. But, as I also noted, there were reports of cars accelerating when there were no floor mats involved. Until its most recent action, Toyota resisted this claim, blaming the problem on the design of the accelerator, and planning to address the problem by installing a redesigned accelerator that would not become entangled in a floor mat. For the first time, the company said it might be possible that there was an acceleration problem that had nothing to do with the floor mat, although, with an eye on minimizing potential lawsuits, the company also said that if there was a problem, it was a rare one.
When the Washington Post called NHTSA for comment, it initially refused, maintaining its Waldo-like appearance. The agency has since opened up, arguing in articles appearing today that it has been pressuring Toyota on the issue. It's troubling, though, that it took so long for the broader recall to be instituted and for the new sales to be halted.
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