In keeping with an apparent effort to hold an antiregulatory hearing on any and all days ending in “y,” Congressional Republicans have teed up yet another humdinger for Monday, March 2. That’s when the House Judiciary Committee’s Subcommittee on Regulatory Reform, Commercial and Administrative law will take a closer look at three more antiregulatory bills that have been recycled from previous congresses, including the Responsibly and Professionally Invigorating Development Act of 2015 (RAPID Act), the Sunshine for Regulatory Decrees and Settlements Act of 2015 (SRDSA), and the Searching for and Cutting Regulations that are Unnecessarily Burdensome Act of 2015 (SCRUB Act). And by “take a closer look,” I mean “recite tired free market platitudes en route to their predetermined conclusion that the passage of these three bills is the only way to prevent regulation-induced economic disaster.”
Others and I have written about all three of the bills in the past, so there’s no need to rehash all of the gory details here. But, in approaching the hearing, a few thoughts are worth keeping in mind on each of these absurd bills:
The SRDSA. Last week, I blogged about the SRDSA—a bill that its supporters claim is necessary to prevent so-called “sue and settle” agreements that lead to environmental regulations—to highlight how a recent Government Accountability Office (GAO) report had thoroughly demolished the “sue and settle” myth. In fact, every claim made by the lead House and Senate sponsors of the SRDSA in their joint press release announcing the bill was directly refuted by the GAO. Hopefully, this GAO report will be discussed at great length on Monday. There is, however, a real “sue and settle” problem that is quite distinct from the fallacious one that congressional Republicans are constantly complaining about. This one involves industrial polluters urging conservative state governments to sue them for their environmental violations, as a means of forestalling citizen suits that seek to hold companies liable for the same environmental violations. The state dutifully steps in, blocks the citizen suit, and then settles with the company with a slap on the wrist. The most infamous example of this maneuver took place just before the Duke coal ash spill in North Carolina last year. Any guesses on whether the Republicans will bring that up on Monday?Full text
A clock hangs in Room 342 of the Dirksen Senate Office Building—the room where tomorrow at 10:00 am the Republican leadership of the Senate Homeland Security and Government Affairs Committee will convene its first antiregulatory circus hearing of the new Congress. Below that clock, the hearing will play out according to a now-familiar script: the Republican members will cite vague constituent concerns about the regulatory system harming their families and businesses; the three industry shills invited by the majority will rehash the same tired and unsubstantiated arguments about how regulations are a drain on the economy; and, by the hearing’s end, a consensus will emerge among the Republican members and their hand-picked witnesses that drastic reforms of the regulatory system are in order. Along the way, hands will be wrung, fists will be pounded, and vitriol will be spewed. Something must be done, they’ll exclaim. That something will assuredly involve more rulemaking procedures that would increase corporations’ already tight grip on the rulemaking process and more lookback procedures for existing regulations that will tie up agencies in knots and waste their dwindling resources.
Meanwhile that clock in Room 342, the one looming just over the Republican members’ heads, will keep ticking. Tick tick tick. As each second passes, the country’s most pressing problems will remain unaddressed. We’ll be no closer to securing funding for transportation infrastructure, which is due to run out in May. We’ll be no closer to tackling the existential threat of global climate change or the stagnant wages that are holding back millions of American families. Most astonishingly of all for the members of the Senate Homeland Security Committee, with each tick, we’ll be one second closer to a shutdown of the Department of Homeland Security set to take place this Friday when the agency’s funding officially expires. Tick tick tick.
Frankly, the timing of this hearing couldn’t be worse for the congressional Republicans who are singularly responsible for the unnecessary game of chicken with the Department of Homeland Security’s funding. But, if they are going to go through with it, at least they should endeavor to not make it a complete waste of everyone’s precious time.
The Republican committee members are right that the regulatory system is not functioning as well as it could, but their diagnosis of the problem—and the remedies they prescribe as a result—are grossly off the mark. Over the last 30-plus years, the rulemaking process has become increasingly captured by corporate interests that are intent on avoiding any public accountability, including through compliance with any regulatory safeguards they find inconvenient to their bottom line. For example, while the rulemaking process was intended to follow a pluralistic model in which agencies would develop new rules based on input from a variety of public stakeholders, industry has been able to leverage its superior resources to dominate these public input processes with the result of diluting and marginalizing the public’s voice. While regulations are supposed to be grounded in the best available science, industry has succeeded in degrading the scientific method into something more reminiscent of “Calvinball,” manufacturing uncertainty to suit its own ends by keeping the rules of the game in a constant state of flux.Full text
This week, the Maryland General Assembly will review new legislation that could help ensure safer workplaces in the state’s construction industry. The proposal, which is a type of “responsible contracting” legislation similar to other policies being tested out in states and municipalities across the country, would require companies that put in bids for work on public works projects in Maryland to attest that they have workplace health and safety programs and that they would implement the programs in construction projects done on the public dime.
It’s an important piece of legislation, given the dangers in the industry. As we noted in our Winning Safer Workplaces manual,
"Construction is one of the most hazardous industries for workers. Frequent injuries and deaths from falls, electrocutions, and striking objects impose unbearably high costs on individuals, families, and local economies. Public Citizen estimates that, between 2008 and 2010, fatal and nonfatal construction injuries cost the states of Maryland $713 million, Washington $762 million, and California $2.9 billion in medical services, lost productivity, administrative expenses, and lost quality of life. The firms responsible for many of these injuries and fatalities, and those with histories of citations for unsafe practices, continue to receive contracts from state and local governments."
Today, the House Economic Matters committee will hear testimony on a proposal to use the Maryland government’s vast purchasing power as a tool for promoting safer construction work practices. I submitted testimony in support of the bill because it is a smart way to ensure workers are being protected in a state where the AFL-CIO estimates it would take 108 years for occupational health and safety inspectors to visit every workplace.Full text
Today I joined a group more than 40 environmental law professors and clinicians from institutions around the nation in a joint letter to the University of North Carolina System Board of Governors urging that they reject a recommendation to shutter the Center on Poverty, Work and Opportunity, housed at the University of North Carolina Law School. That unfortunate recommendation arose from a special committee created by the board at the direction of the legislature to review all 237 of the state university system’s centers, in the wake of criticism of state anti-poverty efforts by the Center’s director, Professor Gene Nichol.
To be clear, the Center takes no money from the state, and hasn’t since 2009. It’s funded by private contributions. It’s being targeted not to save money, but because some in the legislature would rather not have to be reminded of poverty, and don’t have the stomach for criticism of their policies. And since Professor Nichol’s criticisms were a trigger for the special committee’s review, it’s no surprise that the committee has taken aim at the Center.
I’m not directly affiliated with the Center, but our Center for Law, Environment, Adaptation, and Resources (CLEAR) at UNC Law has been looking to work with both the Poverty Center and the Carolina Law School’s Center for Civil Rights to try and address how to minimize the disparate impacts on the poor and minorities from climate change that are going to happen at the North Carolina coast. But aside from my belief that the Poverty Center has much to contribute to advancement of environmental protection, I and my environmental colleagues around the country are writing because we find it hard to sit by while legislators seek to muzzle their critics in academia. Here’s what we say in the letter:
We represent a national group of environmental law professors and clinicians from over forty public and private law schools. Our discipline has faced similar politically motivated criticisms in the past, and will likely do so again in the future. We urge the North Carolina Board of Governors, and all regulators of institutes of higher education, to reject basing university decisions on the popularity of political positions. We come to this position based on important experience in our environmental legal field.Full text
Our intrepid colleague Celeste Monforton, who writes at the Pump Handle blog, recently passed along a neat example of a tool that we wrote about in our Winning Safer Workplaces manual. Minnesota’s Office of the Legislative Auditor released a report on the state’s regulatory protections for meatpacking workers. As we noted in the Winning Safer Workplaces manual, state-level oversight of government regulation can be a valuable tool for advocates who are fighting for stronger workplace protections. The results of new audits can clarify what is working—and what is not working—about the regulatory system, giving advocates critical information that they might use in new campaigns. The audit process itself, by focusing outside attention on programs that may be insulated from regular or public oversight, can also have positive effects for the programs’ intended beneficiaries (here, workers).Full text
Last week, Rep. Doug Collins (R-Ga.) and Sen. Chuck Grassley (R-Iowa) continued the parade of anti-regulatory bills resurrected from past sessions of Congress by introducing in their respective chambers the Sunshine for Regulatory Decrees and Settlements Act of 2015 (SRDSA). While all of these anti-regulatory bills are categorically terrible, the SRDSA really needs to be singled out for special condemnation. After all, it is the only one of the lot that purports to take on a problem—so-called “sue and settle” litigation—that no less than the Government Accountability Office (GAO) has debunked as a myth. Nevertheless, Messrs. Collins and Grassley have pressed ahead with the bill—versions of which they introduced previously in 2013—despite the pressing real problems confronting their constituents and our country.Full text
At last, the Obama Administration is articulating a sense of urgency about moving vitally needed health and safty regulations through its pipeline. Here’s Howard Shelanski, White House Office of Information and Regulatory Affairs, in a Bloomberg BNA story this week:
“So we are working now, here in January of 2015, on getting priorities lined up, so that we do not find ourselves at some point in 2016 with really important policy priorities unexecuted,” Shelanski said.
Later in the interview:
Still, the reason OIRA is working hard with agencies in early 2015 is so they can bring the most important rules through the process this year and finalize them sometime in early 2016, Shelanski said.
It’s about time. Last November, CPR released an Issue Alert calling on the Obama Administration to seize the opportunity offered by its remaining time in office and complete a slate of 13 essential regulatory safeguards that would deliver long-lasting protections for public health, safety, and the environment. In particular, the Issue Alert urged the Administration to immediately begin taking steps toward charting a course for these and other safeguards that would ensure their completion “by no later than June 30, 2016,” which would ensure that they are not swept up in any political riptides in the months leading up to the 2016 presidential elections and to otherwise insulate them against potential repeal under the Congressional Review Act.Full text
Today, the Government Accountability Office (GAO) reiterated its conclusion that EPA’s regulation of toxic chemicals is in crisis, unable to deliver badly needed protection to the American people. These benighted programs are among a couple of dozen of “high priority” failures that cause serious harm to public health, waste resources, or endanger national security, and Congress is giving the report red carpet treatment, with House and Senate hearings on the report scheduled the very day it was released.
In auditor speak, GAO says that “[b]ecause EPA had not developed sufficient chemical assessment information under these programs to limit exposure to many chemicals that may pose substantial health risks, we added this issue to the High Risk List in 2009.” At the time, then-Administrator Lisa Jackson took clear steps to rescue the program. Since then, very little progress has been made, largely because the Obama Administration has narrowed its focus to climate change, and a major overhaul of initiatives swamped by chemical industry nitpicking does not seem to be in the cards until at least 2017.Full text
According to the Office of Information and Regulatory Affairs’ (OIRA) records, the Department of Transportation submitted its draft final crude-by-rail safety rule for White House review late last week. OIRA’s review of draft final rules represents the last hurdle in what can be a long and resource-intensive rulemaking process; just about any rule of consequence cannot take effect without OIRA’s final approval. Once completed, the crude-by-rail rulemaking would help to avoid train derailments and crashes involving the more than 415,000 rail-carloads of flammable crude oil traveling across the United States each year, and to minimize the consequences of such catastrophes if and when they do occur. A recent CPR Issue Alert featured the rulemaking as among the essential 13 regulatory actions that the Obama Administration should commit to completing during its remaining time in office.
OIRA’s centralized review can be a highly contentious and politically charged process, as it allows corporate interests to attack rules they find inconvenient behind closed doors out of the public view. A 2011 CPR White Paper found that industry lobbyists dominate these closed-door meetings, with 65 percent of the meetings’ participants representing regulated industries. In these meetings, industry lobbyists typically find an audience—often made up of the conservative economists that comprise much of OIRA’s staff as well as political operators from the West Wing—that is sympathetic to their pitch. This White Paper and other academic research has shown that industry dominance of the OIRA review process has its desired antiregulatory effect, resulting in rules being delayed, watered down, and sometimes blocked altogether.Full text
In Kansas and Maryland, two states separated by geography and politics, Republican state lawmakers are touting plans that could seriously alter the institutions that workers in those states rely upon to keep them safe on the job.
Two weeks ago, Maryland Delegate (now State Senator) Andrew Serafini introduced a bill that would make drastic changes to the way the Maryland Occupational Safety and Health agency (MOSH) does its job. So drastic, in fact, that the feds would likely have to step in and take over the state’s program. The biggest problem with the bill is a requirement that the agency send employers a letter, warning them that MOSH inspectors are on the way. Tipping off employers is bad policy for an enforcement agency trying to regulate conditions that can be easily be disguised or altered. In many cases, it’s also a criminal act.
The bill has a few other features that likely wouldn’t sit well with the federal OSHA auditors, who annually review state-plan agencies’ policies and practices to ensure that they continue to operate programs that are at least as effective as what Fed-OSHA is doing in other states (not all states run their own state-plan programs). For example, the bill would prevent MOSH from issuing fines in a number of circumstances that would lead to citations in other states. Given the evidence that shows inspections and citations lead to safer workplaces, this kid-glove approach to enforcement puts workers at risk and creates a policy that is not as effective as the Fed-OSHA approach.Full text