Matt Freeman on CPRBlog {Bio}
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Using Executive Orders to Move the Agenda

CPR's Rena Steinzor and Amy Sinden have an op-ed in this morning's Baltimore Sun urging President Obama to make aggressive use of Executive Orders leading to regulation action to protect health, safety and the environment.  They write:

Barack Obama's ambitions are clear. He came to office in 2009 on the strength of a far-reaching, progressive agenda that included resurrecting the economy, rebuilding the American middle class, ending one war, winning another, stopping the Bush-era tax giveaways to the rich, fixing the health care system, addressing global warming, ending "Don't ask, don't tell," and more.

Four years on, despite the bitter partisan divide that defines politics in our age, he's made progress on most fronts, to his great credit. But if he is to make further advances on his agenda, odds are he'll need to do it without much help from Congress. Let's face it: If the fiscal cliff battle tells us anything, it's that the spanking congressional Republicans took from voters last month did little to diminish their appetite for confrontation and gridlock. As a result, great legislative achievements don't seem to be in the cards for either party any time soon.

So what might the president accomplish on his own? Plenty. If, that is, he's willing to use every bit of executive power he can marshal, by directing the regulatory agencies of his administration to move with dispatch to regulate and enforce in a number of vital areas.

The piece draws on their recent CPR Issue Alert, Protecting People & the Environment by the Stroke of a Presidential Pen, written with fellow Member Scholar Robert Glicksman, CPR Senior Policy Analyst Matthew Shudtz, and Policy Analysts James Goodwin and Michael Patoka.  The op-ed and the Issue Alert map out a way for the President to secure a legacy on environmental, health and safety issues, and are well worth a read.

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Columbia Journalism Review Calls Out Bloomberg Story on Regulation

Last week, The Washington Post ran a story about regulation, headlined, "Regulators surge in numbers while overseers shrink." The story came from Bloomberg and was written by reporter Andrew Zajac. The headline captures the thrust of the piece. Zajac writes:

As the U.S. government’s regulatory bureaucracy has ballooned, one agency has been left behind: the office that oversees the regulators. The number of people working in federal agencies with regulatory authority has doubled to about 292,000 under both Republican and Democratic administrations during the past 30 years.

Yesterday, the Columbia Journalism Review dismantled the story's premise in the kind of takedown that ought to prompt the Post not just to run a correction, but to reconsider the way it reviews future Bloomberg stories on the subject before it prints them.

The takedown comes from Ryan Chittum, writing for CJR's "The Audit on the Business Press." Its headline also tells the tale: "Inflating the regulatory state: TSA and border security account for almost half of the increase in the regulatory staff since 1980."

Chittum writes:

The regulatory bureaucracy has ballooned? That doesn’t sound right. The federal workforce, after all, is down over the last 40-plus years, and places like OSHA are shadows of their former selves.

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A Warning about Water Quality Trading in the Chesapeake

This Memorial Day weekend, boaters, swimmers, fishers and others will flock to the Chesapeake Bay to mark the traditional, if not quite calendrically accurate, beginning of summer. They'll bring their wallets with them, of course, thus supporting businesses and and jobs up and down the Bay. After a day in, on or near the water, many of them will tuck into a meal of crabcakes, made from blue crabs harvested in the Bay.

Recreation and commerce are two of the most important uses of the Bay, and certainly the best known. But another use, less advertised and far less understood, is as a dumping ground for pollution. Some of that pollution comes from rainwater runoff from roads and other hard surfaces, carrying motor oil and other substances into the Bay. Some comes from overfertilized lawns. And a significant chunk, including 44 percent of the Bay's load of nitrogen and phosphorous, the most worrisome pollutants, comes from agriculture. That includes concentrated animal feeding operations (CAFOs) in the region, as well as largely unregulated crop farms whose fertilizer runs off into Bay tributaries.

Despite the huge importance to the region of a healthy Bay, the simple truth is that human activity is endangering it. Already, the Bay experiences "dead zones," as a result. The stop-start, but mostly stopped, effort to clean up the Bay over the last quarter century has accomplished little, and EPA leadership -- at least until 2009 -- was conspicuuously absent.

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Bloomberg News Serves up an Echo-Chamber-Ready Take on Regulation

Last week, Bloomberg News ran a curious story conflating a range of issues under the banner of regulatory rollbacks. The piece keys off of the ongoing GOP push to deregulate America. That effort has been going on for decades, of course, but in the wake of the recession (made possible, not coincidentally, by deregulation in the economic sector), GOP leaders and their business allies and funders have rebranded it, and now argue that that "burdensome" economic, health, safety and environmental regulations are in fact the cause of economic distress.

Most of the GOP rhetoric has been aimed at federal regulation. But the Bloomberg piece breaks some new ground, sweeping together a hodgepodge of state regulations and laws, overlaying it with an uncritical reference to some shoddy right-wing research, and presenting the resulting brew as the state and local expression of the GOP's anti-regulatory campaign.

In the first three paragraphs of the story, the reader is given purported evidence that regulations are bad for the economy, and treated to a quote from a blogger for the right-wing Americans for Tax Reform (ATR) alerting us to a "national focus on reducing regulation…some of [which] is about jobs and revenue and some of [which] is about less government."

The supposed evidence of regulatory burden is an unattributed study (the article eventually explains it was "issued" by then-Governor Arnold Schwarzenegger, but never names the source) concluding that "regulation cut gross state output in California by $493 billion a year." A little Googling reveals that the study was conducted by two researchers at California State University, Sacramento, apparently under contract from the Governor's Office of Small Business Advocate. Much as a similar report from the U.S. Small Business Administration's Office of Advocacy has been discredited by a number of sources for its ridiculous methodology, the California version uses similar methods and got similar reviews. California's nonpartisan Legislative Analyst's Office dismembers its methodology and conclusions, making clear that it piles bad estimates on top of bad methodology, charitably describing its flaws with words like "deficient," "problems," "special difficulties, "inappropriate," and "overstated." Bloomberg, on the other hand, presents it as if its calculation were the revealed truth.

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Regulatory Opponents Take Note: The Media May Be Catching On!

One of the many ways that the slow and agonizing contraction of the newspaper industry is felt is in the depth of coverage that papers provide their readers. It’s a matter of simple math, really. As newsrooms shrink, reporters are stretched ever thinner. So a newspaper that 15 years ago had separate reporters covering elementary and secondary education is now likely to have just one covering both. Similarly, newspapers have fewer reporters dedicated to the environmental beat, let alone beats covering regulatory issues — topics at the heart of the Center for Progressive Reform’s work. The result is that many reporters don’t have time to take on stories they might once have covered, and if they do, they sometimes have a steeper learning curve and too little time to really dig in. That’s a recipe for simplistic coverage, which is just a nice way of saying bad coverage.

But I’d like to highlight two notable exceptions. On Tuesday, two of the nation’s leading newspapers offered stories about regulation that went far beyond the norm.

Think for a moment about the storyline on regulation for the past couple years. Republicans in Congress, intent on devising some rationale for the nation’s economic woes that does not point back to the failings of their own deregulatory policies, have resaddled their longstanding anti-regulatory campaign with a new and timely argument: that a supposed flood of regulations from the Obama Administration is choking off the recovery.

It’s a hard case to make if you stick to the facts. The truth is that regulations produce vastly more economic benefit than they cost – that is the purpose of the cost-benefit analysis wringer through which major regulations are fed before they are finalized. With very rare exception, if a regulation’s dollar benefits don’t exceed its dollar costs, it gets rewritten or killed. (And keep in mind that that the big failing of the cost-benefit process is that it overestimates costs and underestimates benefits.)

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Holding Maryland Accountable for Its Chesapeake Bay Clean-Up Obligations

In an article in the most recent issue of The Abell Report, the newsletter of The Abell Foundation, CPR President Rena Steinzor and CPR Policy Analysts Aimee Simpson and Yee Huang take a look at what ails the Chesapeake Bay (Spoiler Alert: it involves years of inaction on pollution), and offer up a number of practical steps the state of Maryland could take to make good on its commitments to clean up this most precious of natural resources.

The article draws on a day-long forum CPR co-sponsored this past October with the University of Maryland Francis King Carey School of Law, an event that gathered federal and state officials, as well as leading environmental activists from around the region.

Steinzor, Simpson and Huang make the case that the reason efforts to clean up the Bay have largely failed to date is that the Bay states are fundamentally unaccountable. They write:

For more than two decades, the primary Bay states (the District of Columbia, Maryland, Pennsylvania, and Virginia) have engaged in a series of round-robin consultations held under the auspices of the Chesapeake Bay Program. Progress was made in diagnosing the causes and implications of dead zones; diminishing crab and fish populations; algal blooms; and pollution that made rivers, lakes, creeks, and streams unusable for drinking, swimming, and boating. Individual states implemented innovative and effective pollution-control programs; glossy reports were produced; and every year, governors and the administrator of the EPA gathered for a photo op on the banks of picturesque Bay waterbodies. Despite the analyzing, meeting, planning, and talking, the Bay’s health remains tenuous, and the Bay states have repeatedly failed to meet the pollution-reduction goals set during these appearances.

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API's Request for Delay on Greenhouse Gas Reg is a True Pitch in the Dirt

Nothing attracts attacks in politics quite like a show of weakness. That’s obviously how energy industry lobbyists read President Obama’s recent retreat on ozone standards. So now that the Administration has demonstrated its willingness – you might even call it eagerness – to cave in on much needed environmental regulation, it’s no surprise that polluting industries are of a mind to press their luck. 

How else to explain a request to the Environmental Protection Agency from the American Petroleum Institute – that’s the oil and natural gas industry trade group – to delay until late 2013 forthcoming regulations on refineries, including landmark greenhouse gas regulations.

The current plan is for those rules to be finalized at the end of this year.

To review the bidding on this, the greenhouse gas regs are the first to emerge from EPA after a long and brutal battle that involved eight years of Bush Administration intransigence, even in the face of a Supreme Court ruling that all but ordered the Administration to go ahead and regulate greenhouse gases. The Bush effort pretty much spanned the industry playbook. On the campaign trail in 2000, compassionate conservative George W. Bush said he’d regulate carbon dioxide to combat climate change. Once elected, he reneged, and took the view that climate change needed much, much, much more study. Years of study, in fact. Of course, when the scientists weighed in, the Bush team worked to suppress their expert opinion that climate change was real, man-made, and happening now.

Finally, the Administration ended up before the Supreme Court, which, despite its conservative majority, concluded that the Administration’s arguments on why it shouldn’t regulate greenhouse gases were just so much hot, CO2-laden air. Still, President Bush managed to leave town without making any progress toward regulation.

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Chamber of Commerce Gets the Law Wrong in its Argument to the White House Against Listing BPA as a Chemical of Concern

As part of its ongoing campaign to derail health, safety, and environmental regulations that it regards as inconvenient to industry, the Chamber of Commerce sent a letter earlier this month to Cass Sunstein, Administrator of the White Hosue Office of Information and Regulatory Affairs, calling on him to push the EPA to suspend an initiative to list BPA and several other substances as "Chemicals of Concern." Today three Member Scholars of the Center for Progressive Reform sent a letter to Sunstein, arguing that the Chamber had misread the law and calling on Sunstein to allow EPA to publish the proposed rule so that the public can comment on it.

EPA is considering listing BPA and four other chemicals using its authority under § 5(b)(4) of the Toxic Substances Control Act (TSCA). Each of the chemicals (or classes of chemicals)—BPA, Hexabromocyclododecane (HBCD), Nonylphenol (NP) and Nonylphenol Ethoxylates (NPEs), Phthalates, and Polybrominated Diphenyl (PBDE)—poses significant health and safety risks that the EPA has rightly determined warrant public dissemination.

In their letter today, CPR Member Scholars Noah Sachs, Rena Steinzor, and Wendy Wagner lay out how the Chamber misreads the law in its demand that the EPA promulgate specific standards prior to proposing § 5(b)(4) listings. TSCA sets a clear standard, that the EPA Administrator may list any chemical that she finds “may present an unreasonable risk.” That “may present” standard is used throughout TSCA, and no court has ever forced the agency to define the term numerically, as the Chamber demands.

The Member Scholars also write that the Chamber’s lawyers misread the law by asserting that EPA is exceeding its authority in moving to list the chemicals:

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Administration Pandering to Anti-Regulatory Business Leaders Gets Cold Shoulder

The Washington Post reports today on the White House’s latest failed effort to extract political gain from the President’s misguided “regulatory look-back,” led with disturbing enthusiasm by Cass Sunstein, administrator of the White House Office of Information and Regulatory Affairs. The story tells us a lot about the thinking of the man who controls access to the President, and also lays bare a failing of the way the media covers regulatory issues.

According to the Post, White House chief of staff William M. Daley appeared Thursday before a National Association of Manufacturers gathering hoping to “make nice with corporate America.” But instead, he endured a series of hostile questions from the audience of manufacturing executives eager for looser regulation of their industries.

Daley served up the President’s regulatory look-back as evidence of the Administration’s willingness to weaken regulation in order to please industry – and perhaps the occasional independent voter. But the titans of industry were having none of it. Quotes the Post:

“We think there’s a thin facade by the administration to say the right things, but they don’t come close to doing things,” said Barney T. Bishop III, chief executive of the business group Associated Industries of Florida. He called the efforts to streamline regulations “immaterial.” “We love the platitudes, but we want to see action,” Bishop said.

In a telling example that the Post story doesn’t bother to run down, a Massachusetts utility exec named Doug Starrett complained to Daley that the “Administration [was] blocking construction on one of his facilities to protect fish, saying government ‘throws sand into the gears of progress.’” If Daley offered any defense, or even allowed for the prospect that there might be more to the story, the Post doesn’t mention it. Instead, Daley is paraphrased as saying he “did not have many good answers, appearing to throw up his hands in frustration at what he called, ‘bureaucratic stuff that’s hard to defend.’ ‘Sometimes you can’t defend the indefensible,’ he said.”

Maybe so, but it might have been useful to gather a fact or two before pointing fingers at “bureaucrats.” Here’s a little background on Starrett’s facility, courtesy of the Worcester Business Journal.

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Disaster Planning and Recovery: Verchick Op-Eds in Christian Science Monitor and New Orleans Times-Picayune

Robert R.M. Verchick recently completed a two-year stint with the U.S. Environmental Protection Agency, and returned to his work at Loyola University in New Orleans, and, happily, to the rolls of active CPR Member Scholars. While at EPA, he published Facing Catastrophe: Environmental Action for a Post-Katrina World, and just a few days after returning to CPR, he's published two op-eds on disaster preparedness and recovery.

In the Christian Science Monitor on April 13, he asked whether Japan's recovery from the recent tsunami and nuclear disaster would be "heavy-handed or hands-off"? He goes on to contrast the recovery efforts in Japan after a 1995 earthquake laid waste to the city of Kobe with the ongoing post-Katrina recovery in Verchick's home town of New Orleans. In Kobe, Verchick says, strong-willed Mayor Kazutoshi Sasayama developed a master plan for reconstructing the city, and pursued it with iron determination. Verchick writes,

[P]rogress came at great cost. That “makeover” became for some a “takeover,” as residents of modest means saw their property downsized or expropriated. Japan’s emergency management office officially refused to allow government aid to go directly to residents (although some local governments ignored the edict), foisting hardship on the city’s elderly and disabled populations, as well as the working poor. Public hostility mounted. On the first anniversary of the quake, the city’s vice-mayor committed suicide. Eventually, city leaders reversed their previous stances and invited greater community involvement; but among some, resentment continues to this day.

By contrast, the New Orleans recovery has been marked, in Verchick's description, by a "light touch."

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