Sidney Shapiro on CPRBlog {Bio}
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Regulatory Delay: Why It Took OSHA 25 Years to Promulgate a Construction Safety Rule

OSHA has finally promulgated a Confined Spaces in Construction rule.  The agency waited 25 years after it had issued an Advanced Notice of Proposed Rulemaking (ANPR) to issue a rule.   Administrative law academics have been concerned for some time about the ossification of rulemaking due to a set of regulatory hurdles imposed by regulatory opponents. Proponents say these hurdles are necessary to ensure the accuracy and reasonableness of regulations, but they also deny workers and others of regulatory protection for years and years — a quarter century in this case.  In short, perfection has become the enemy of the good, a pattern that has real consequences for the workers who depend on OSHA to issue rules in a timely way.

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Workers Are Safer at Work, But Not as Safe as They Could and Should Be

The Bureau of Labor Statistics (BLS) has reported that the occupational fatality rate of 3.3 deaths per 100,000 workers for 2013 was the lowest reported rate since the BLS started using its current tracking methodology in 2006.  That’s good news, but we’ve got a very long way to go still. The simple truth is that workers are not as safe as they could and should be. Although the fatality rate is down, there were still 4,585 occupational fatalities in 2013. 

The principal method for making workers safer is regulation and enforcement by the Occupational Health & Safety Administration. While about 40 percent of the deaths resulted from motor vehicle-related accidents, which is outside of OSHA’s regulatory authority, OSHA has tried to address the job risks within its jurisdiction by targeting the most dangerous industries and imposing the maximum penalties in appropriate cases. No doubt these efforts have resulted in the reported fatality reductions. To do better, however, OSHA faces a number of challenges.  

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The First Earth Day and Current Political Gridlock

Forty-five years ago I joined hundreds of people in Fairmont Park in Philadelphia for the first Earth Day.  The sad state of the environment on that day was all too apparent.  The Cuyahoga River in Cleveland was so polluted that it caught on fire the year before.   The 1969 Santa Barbara oil spill is still the third largest oil spill in American history. The air pollution in America’s cities – palpable air – had reached epidemic proportions.  Rachael Carson’s book, Silent Spring, detailing the adverse impact of toxic chemicals on the environment was eight years old, having been read by hundreds of thousands of people. 

In today’s gridlocked political environment, it is worth asking whether Earth Day still provides any lessons for the continuing struggle to protect the environment.

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Irresponsible Reform: The House Favors Extreme Legislation That Would Delay Public Protections by Ten Years or More

Today, the House of Representatives voted to pass the Regulatory Accountability Act of 2015, which would amend the Administrative Procedure Act (APA) to add over 74 new procedural requirements to the rule-making process, including more than 29 new “documentation” requirements.  The goal of administrative procedure is to ensure that the government’s adoption of regulation is accountable and fair, but not at the expense of hamstringing the ability of agencies to fulfill the public interest.  The House obviously has no such concern.  Agencies already take four to eight years to promulgate any type of complex and controversial regulation, and the new requirements would add another two to three years or more to the process.  House Republicans voted today to delay clean air, clean water, safer workplaces, and less toxic products for their constituents. In addition, they have given Wall Street a green light to re-engage in behavior risky enough to collect enormous profits while taxpayers are left footing the bill for the inevitable devastating consequences.

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New Legislation: How the House of Representatives Would Use Scientific Uncertainty to Stop Environmental Legislation

The House of Representatives has passed legislation (H.R. 1422) that prohibits academic scientists on EPA’s Scientific Advisory committee from participating in “activities that directly or indirectly involve review of evaluation of their own work,” but allows scientists who work for industry to serve on the Board as long as they reveal their respective conflicts of interest. To understand the House’s real motives, it is necessary to appreciate how industry seeks to use scientific uncertainty as an excuse not to act on environmental problems.  Senator Inhofe’s claim that global climate change is a hoax is a well-known example of this tactic.  Less visible is a decades long public relations, litigation, and advocacy campaign by corporate interests to manufacturer doubt about the science that supports environmental regulation.

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Chemical Industry takes Aim at Citizen Suits with 'Reform' Bill

The recent chemical spill disaster in West Virginia has brought into sharp focus the weak measures we have in place for safeguarding people and the environment against exposures to harmful chemicals.  State and civil justice systems have helped to fill the resulting void by providing individuals who have suffered harmful exposures with an opportunity to hold accountable any people or corporations responsible for the chemical by seeking reasonable compensation for their injuries.  It’s often difficult to win these cases, and even victory won’t undo the pain and fear that comes with suffering from cancer or other illnesses that can result from harmful exposures to toxic chemicals, but the process does hold out the possibility that victims can obtain some measure of justice for the harm they have endured.

Recently, industrial chemical manufacturers and users have supported a new and subtle method for undermining legal responsibility.  They are using efforts in the U.S. Senate to update the Toxic Substances Control Act (TSCA)—the primary law governing federal regulation of hazardous chemicals—to enact “evidentiary preemption.”  Specifically, the chemical industry is supporting the Chemical Safety Improvements Act (CSIA), which contains a provision that would fundamentally change how civil courts consider evidence regarding the harms posed by toxic chemicals in many tort cases where people have been injured by those substances.  The upshot is that in many instances even plainly dangerous chemicals would be incorrectly regarded as “safe” for evidence purposes, which would effectively immunize the manufacturers and users of those chemicals against any liability for the harms that the substances might cause.  These companies already have a pretty sweet deal, since TSCA is so ineffective in controlling chemicals in the first place.  This bill would guarantee them an even sweeter deal: weak regulations and a hamstrung civil justice system.

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A Turning of the Tide? More Belief in Government, Less Blind Faith in Markets

Suddenly politics in this country appears to have taken a turn toward democracy and away from markets.

As we develop in a book just published by Oxford University Press, Achieving Democracy: The Future of Progressive Reform, the history of the United States reveals a pattern in which citizens alternate between relying on markets and democracy, including government intervention in those markets, to achieve the type of country in which we wish to live.

Consider: President Obama was reelected over Mitt Romney, who sought to distinguish his candidacy by forcefully endorsing the small government approach. Congress has passed a budget, rejecting Tea Party efforts once again to derail the budget process until the Affordable Care Act has been repealed. The administration is finally on its way to implementing the Act, despite unrelenting efforts to obstruct it. Republicans have joined Democrats in discussing economic inequality. Regulation of Wall Street proceeds apace after the investment banks and mortgage lenders sank the American economy with their recklessness as they now write multi-billion dollar checks for their malfeasance. If indeed the tide has turned, the country is emerging from a cycle deemphasizing government that dates back to the election of Ronald Reagan.  

It is too early to know for sure whether the country will once again embrace government as leader and partner in order to address pressing problems that markets have caused or are unable to address.  Certainly the poisoning of drinking water in Charleston, West Virginia, the latest highly visible crisis attributable to the failure to engage in effective regulation, should help add momentum. But Tea Party-backed governors and legislatures are still in control in many of the states, and they’re so eager to please the right-wing constituencies that they’ve turned back federal dollars that would pay for health 

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Senate Republicans against DC Circuit Court nominees: talking through their hats

This week, it was reported that Senate Democrats plan to force a vote to confirm one judicial nominee to the D.C. Circuit Court of Appeals if Republican Senators continue to block the nominee’s confirmation. Patricia Ann Millett, who has worked for Democratic and Republican administrations in the past, is the contested candidate.  Although the circuit court has three vacancies, the Republicans oppose a vote because they say the D.C. Court of Appeals has too many judges. Senator Jefferson Sessions, for example, is quoted as saying about the court, "They have, by far, the lowest caseload per judge. They take the summers off." Other than this political rhetoric, there is nothing to back up this claim. The Republican’s true objection is that, after the President fills the vacancies, the court will have more judges that will have been appointed by presidents who were Democrats than Republicans. But this is our constitutional system. If a party wins the presidency, the President gets to fill judicial vacancies and the Senate concurs unless the person nominated is not competent. 

From the time the President announced his nominations to the Court back in June, Republicans have kept up a steady stream of misinformation about the need to fill the court. First they claimed that filling the court vacancies would amount to “court-packing,” a term that refers to an effort during the Roosevelt administration to add more judges to the Supreme Court -- not to eliminate existing seats, as the Republicans would like to do here. In addition, they were more than happy to fill the seats vacated during the Bush Administration. 

Now they claim that the D.C. Circuit does not need as many judges as it current has. Senator Grassley has crafted legislation to permanently eliminate seats on the circuit court to preclude the possibility that the President can fill the existing vacancies. In the past, however, Congress has determined how many judges are needed in each of the federal circuit courts based on recommendations of the non-partisan Federal Judicial Center, which studies caseloads and makes its recommendations based on available empirical evidence. This is why Chief Justice Roberts has asked Congress to fill the vacancies on the D.C. Circuit. As Chief Justice, he is the head of the Center and he is acting on its recommendations. In fact, the average caseload for the Court is up, from 119 cases in 2005 to 188 cases this year. The cases before the Court are also more complex than other circuits because it reviews cases involving complicated regulations adopted by agencies. It would be a shame if decisions about the number of judges in each circuit, one of the few remaining vestiges of non-partisanship left in Congress— were wiped out by Republican partisanship.

Why are the Republicans talking through their hats? The answer lies in the D.C. Circuit's unique jurisdiction over environmental, health, safety and other regulations, which gives it a particularly important role in the federal judiciary.   For years, the circuit court has had more judges appointed by Republican presidents than presidents who were Democrats. Now that President Obama has won reelection, and can change the balance, the Republicans are no longer willing to fill the vacancies that they were only to happy to fill when it was a Republican president who was choosing the nominees. 

The American people deserve better and are not falling for the Republicans’ hot air. Editorials from local papers across the country have come out in support of filling the Court’s remaining seats.  Senator Grassley’s own local paper the Daily Iowan notes:

Unlike the attempted 1937court-packing power grab by Roosevelt, Obama is not seeking to create new seats on the Court of Appeals to tilt the court’s partisan balance in his favor. Obama seeks only to fill judicial vacancies in accordance with his Constitutional job description.... Grassley argues that the court’s relatively low caseload requires such a reduction in seats, but an April report from the nonpartisan Judicial Conference of the United States, a group led by Roberts, recommended keeping the number of judges on the D.C. court at 11. The actions and the rhetoric of Grassley and the rest of his Senate partisans smack ultimately of obstructionism.

The argument that we should move seats from this circuit to other circuits because the Court is "not busy enough" is laughable at best and deeply cynical at worst. The Republican Senators simply cannot accept that their party lost the election, and they are prepared to stall judicial nominations until they win again, no matter the cost to the country or the Constitution. 

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New CPR Issue Alert on toxics: reform must help, not hinder states and victims’ rights

In the United States, the framework for safeguarding people and the environment against the dangers of toxic chemicals comprises three mutually reinforcing legal systems: federal regulation, state and federal civil justice systems, and state regulation. Each part of the framework however, has been substantially weakened — the civil justice systems by years of tort "reform," and federal and state regulatory systems by outdated laws and an ongoing campaign by industry and its allies against protective regulation.  

Congress is now considering competing bills to fix one part of this framework—the Toxic Substances Control Act (TSCA), the principal statute governing federal regulation of toxic chemicals.  The two bills—the more protective Safer Chemical Act (SCA) and the industry-backed Chemical Safety Improvements Act (CSIA)—both fall short of what is needed to fix TSCA, albeit to a widely varying degree—while weakening the civil justice systems and state regulation even more. 

To be sure, TSCA reform is overdue. The statute’s inadequate data-gathering provisions have prevented the Environmental Protection Agency (EPA)—the agency charged with implementing TSCA—from obtaining critical information on the potential hazards of the tens of thousands of chemicals currently on the market. And even when the EPA is able to confirm that a chemical is dangerous, TSCA provides the agency with little authority to take meaningful action to protect against the health or environmental risks the substance poses.

While neither of the two leading TSCA reform proposals—the SCA and the CSIA—do enough to strengthen federal regulatory public protections against toxic chemicals, the CSIA would take a significant step backwards by effectively eliminating the two other parts of the framework—the state and federal civil justice systems and state regulation. The CSIA would preempt state and federal tort law by granting partial immunity to industrial chemical manufacturers and users whose activities have been deemed “safe” by the EPA.   The CSIA would also broadly preempt state efforts to request that manufacturers supply data regarding their chemicals and prohibit state and local governments from regulating a particular chemical in any way once the EPA has prioritized that chemical for further assessment.

Center for Progressive Reform Member Scholars Emily Hammond, Thomas McGarity, Wendy Wagner and CPR Senior Policy Analyst James Goodwin and I have written a CPR Issue Alert that seeks to explain how each part of the three-part protective framework contributes to reducing the risks posed by chemicals, and we recommend ways that TSCA reform can strengthen all three parts of the protective framework. 

 

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More Politics, Less Expertise: What OIRA has Wrought

 As indicated by the 20th anniversary of Executive Order 12866, which guides the workings of the Office of Information and Regulatory Affairs (OIRA) at OMB, OIRA has become a fixture of the regulatory landscape.  OIRA review of proposed rules is problematic, as other blogs in this series have indicated.   In the Obama administration, however, this is an additional problem. Other offices in the White House, besides OIRA, are more deeply involved in making regulatory decisions than in any other previous administration. This deeper involvement has made it more likely that regulatory decisions will reflect political considerations rather than policy considerations.   When this happens, OIRA’s regulatory review under E.O. 12866 can become a fig leaf covering up for the political decisions that are being made.

There is an old saying that in government “where you stand depends on where you sit.” That is, your view of the world is formed by the institutional arrangements in which you work. White House officials are sensitive to public policy arguments based on expertise, but they also more concerned than their agency counterparts with the political ramifications of such decisions. The White House may seek to control a regulatory outcome to obtain good public policy, but it may also seek to do so to curry favor with political donors or to forestall potential political attacks on the President. Since agency administrators are not running for office, they and their staffs do not share these political concerns (except indirectly in response to pressure from the White House or Congress.) 

 

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