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One Year In, the Obama Administration’s ‘Path to Progress’ Is Benefiting the American People and Our Environment

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.

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What’s on the Labor Department’s Regulatory Agenda?

Late last week, the White House released its fall 2015 Unified Agenda—the semi-annual report on regulations under development or review by each federal agency. As usual, and therefore, of little surprise, this latest agenda spells delay for a laundry list of critical safeguards at several agencies.

According to CPR senior analyst James Goodwin’s review of the regulatory agendas for the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and several other agencies, several new protections will be delayed anywhere from two months to over a year.

A look at the Department of Labor’s regulatory agenda also signals extensive delays for some long-anticipated worker protections. Here is the status of rules under development at DOL classified as “major” or “economically significant” rules:

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The Fall 2015 Regulatory Agenda is Out, and the Clock is Now Ticking

Opponents of safeguards are fond of decrying what they claim is a regulatory system out of control, churning out rules at a break-neck pace.  It’s not difficult to refute  this claim when the president releases the twice-annual regulatory agenda, which spells out all the active rulemakings that are currently pending and the expected timetables for making progress on those rules that agencies expect to make over the next 12 months.  Sure enough, time and time again the semiannual regulatory agenda demonstrate that most facets of the regulatory system are moving along at a snail’s pace, the victims of politics, under-funded agencies, and a rulemaking process that favors industry.

By comparing the expected timetables in this regulatory agenda against those from the most recent one in Spring 2015, one can see how the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and other agencies are falling further and further behind on completing crucial new safeguards.  In some cases, the rules have been the subject of new delays over the past several regulatory agendas.

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Confusion and Frustration as Maryland High Court Hears Arguments over Stormwater Permits

Last week the Maryland Court of Appeals heard several hours of oral argument in back to back (to back) cases regarding whether five different municipal stormwater (“MS4”) permits issued by the Maryland Department of the Environment (MDE) complied with the federal Clean Water Act and state water pollution laws. Although divided into separate cases due to their unique procedural histories, the three cases were consolidated into one marathon oral argument due to the substantial overlap of the issues involved. The legal arguments have changed significantly since the first motions and petitions were filed several years ago, with some of the most ambitious legal theories having fallen away. What remains in dispute in these cases are largely procedural, though still crucial, issues regarding how to structure the permits so as to ensure that the permits are enforceable and that the counties are accountable to the public. Basically, the cases boil down to a total and justifiable lack of trust in MDE and the counties to get the job done. In fairness to MDE, it must be noted that the permits contain some very ambitious and laudable goals, which represent some of the most stringent MS4 permit terms in the country. The issue is that neither the counties, nor MDE has come close to living up to the promise of these permits.

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CPR's Joel Mintz on the Trans-Pacific Partnership

In an op-ed for The Hill, CPR Member Scholar Joel Mintz takes a look at the Trans-Pacific Partnership (TPP), and concludes that it’s insufficiently protective of the environment, the Administration’s assertions notwithstanding.

In his piece, he notes that the TPP “contains no mention whatsoever of what is widely seen as the most pressing threat to the global environment: disruption of the earth’s climate from the release of greenhouse gases.” Indeed, he notes, the TPP could encourage more fracking, thus contributing to greenhouse gas emissions. He goes on to write,

The most potentially damaging threat posed to U.S. environmental laws by the TPP, however, stems from the agreement’s mechanism for the settlement of inter-party disputes: the Investor State Dispute Resolution system (ISDS).

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Chickens Aren’t the Only Ones Suffering at the Slaughterhouse

A startling new report by Oxfam America reveals just how dangerous it is to work inside a poultry processing plant. The report is packed full of alarming statistics and heart-breaking personal stories from brave workers, exposing an industry that fails to protect workers from well-known hazards and that discourages workers from reporting injuries when they occur.

Despite the underreporting of injuries and illnesses, the poultry industry’s safety record is dismal. According to the Bureau of Labor Statistics, the industry had 4.5 total recordable cases per 100,000 full-time workers in 2013, compared to the national average for private industry of 3.3 total recordable cases. Among the common injuries in the industry, poultry workers suffer a high incidence of musculoskeletal disorders (MSDs), like carpal tunnel syndrome and shoulder injuries, from repetitive and forceful twisting, cutting, and chopping movements.

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Shallow, Shallower, Shallowest

Fostering informed debate about sound regulatory policy to protect health, safety, and the environment is one of the Center for Progressive Reform’s fundamental objectives. Presidential candidates, on the other hand, like to focus on the issues that will get them elected, not necessarily the issues that are important.

Unfortunately, the media is increasingly complicit in avoiding genuine issue discussions. Weekend before last, GOP candidate Carly Fiorina appeared on ABC’s Sunday public affairs talk show, “This Week,” and in response to an essentially political question about Paul Ryan from the usually fine ABC journalist Martha Raddatz, Fiorina veered into regulatory policy. Here’s ABC’s transcript:

RADDATZ:  I want to start off with Paul Ryan. He was a congressional staffer, elected to the House at age 28. Is he too much of a Washington insider to change so-called business as usual in Washington?

CARLY FIORINA (R), PRESIDENTIAL CANDIDATE: Well, we'll see. But I think everything you heard Paul Ryan say is that he intends to lead the Republican caucus to providing solutions. And I think that's what people want. You know, when I'm out here on the campaign trail, people want to see results. Leadership is about producing results. It's not about talking, it's about producing results.

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Law Schools Doing Good

How Law Schools Serve the Public

Most people probably think of law schools, when they think of them at all, as places that train future lawyers.  That’s true, and it’s important, but law schools do a lot more.  Faculty scholarship makes a difference –law review articles laid the foundation for many of the ideas now guiding judges (both on the Right and the Left).  But I’d like to focus here on another, more recent activity by law schools — the environmental law clinics and research centers that have sprung up in recent years. There are too many of these across the country to describe here.  Instead, I’ll stick to the University of California law schools. Even so, space allows a discussion of only a fraction of their activities.

One key activity is a joint project of Berkeley and UCLA, although it’s housed here.  The announced goal of the Climate Change and Business Initiative helping businesses prosper in an era of climate change.  In a series of projects, the Initiative has worked with stakeholders to find legal barriers that stand in the way of renewable energy, energy conservation, and other sustainability practices.  Working actively with California state government, the Initiative has issued a series of white papers advising how these barriers can be removed.  The Bank of America Foundation funds this project. Berkeley is also actively engaged in water-related issues, particularly groundwater.  One major effort resulted in a white paper on fracking and groundwater that helped shape California law on the subject. We are also undertaking several projects to address issues raised by the on-going California drought.  By the way, none of our efforts are funded by state money or student tuition.

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EPA Cracks Down on Stormwater Pollutants in Rhode Island

Here in the Chesapeake Bay watershed, polluted runoff from impervious surfaces, such as roofs, driveways, parking lots, and a vast network of roads, is a huge problem.  In fact, while pollution from wastewater treatment plants has decreased significantly since EPA established the Chesapeake Bay Total Maximum Daily Load (TMDL) several years ago, and while overall agricultural pollution has even decreased slightly during that same general period, nitrogen pollution from stormwater has actually increased since 2009. The lack of progress in reducing stormwater pollution stems in part from the failure of state environmental agencies and Region 3 of the Environmental Protection Agency (EPA) to properly enforce the provisions of existing municipal separate storm sewer system (MS4) permits.  However, this month the U.S. Department of Justice along with EPA Region 1 concluded an enforcement action against the Rhode Island Department of Transportation for violations of its stormwater permits. Let’s hope Region 3 and Maryland were paying attention.

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Addressing Externalities: A Modest Proposal

How to make health and safety a personal priority for industry officials.

According to economists, firms have little reason to take into account the cost of externalities — that is to say, the harms their activities may impose on others.  The traditional solutions are damage remedies or taxes to transfer the financial cost to the industry, or regulation to force  industries to limit their harmful activities.  Why not try a more direct solution?  Why not require owners and managers to expose themselves to the same risks?

For instance, we could require managers of nuclear plants, utility officials, and officials of reactor manufacturers to live within a mile of the plant, along with their families.  That would enhance the incentive to think of safety.   Similarly, we might require oil company executives and their families to live within a mile of a refinery, so they would experience the same risks and the same exposure to air pollution as the surrounding community.  Along the same lines, chemical company executives could also be required to live near their own facilities and drink the local water, as would operators of hazardous waste disposal sites.  We could even imagine that coal company executives would be required to have their offices inside working coal mines.

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