James Goodwin on CPRBlog {Bio}
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Reports of the Death of the Obama Administration Are Greatly Exaggerated: The US-Chinese Climate Agreement

The commentary following last week’s elections has largely been a variation on either of two themes:  (1) how strong Republicans are now that they have secured majorities in both houses of Congress or (2) how correspondingly weak the Obama Administration will be for the remainder of its time in office when it comes to advancing its policy goals.  This commentary may be true insofar as it relates to new legislation.  (Even there, nothing will really change as the prospects for new legislation that the President can sign will be not much worse now than they have been in recent Congresses.)  But when it comes to enforcement of laws that already on the books, President Obama holds the undisputed upper hand, and congressional Republicans remain effectively impotent.

Last night’s agreement between the United States and China to undertake significant cuts in greenhouse gas emission by 2030 illustrates that.  Under the agreement, the United States will cut its emissions between 26 percent and 28 percent below 2005 levels by 2025, while China will reach its peak greenhouse gas emission by 2030 or earlier.  Since the United States and China are far and away the two largest national emitters of greenhouse gases, this agreement marks a huge step in the international effort to avoid the most dangerous impacts of global climate disruption.  It also helps pave the way for the rest of the global community to undertake significant emissions reductions measures of their own as part of future international treaty negotiations.

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Obama’s Path to Progress: Protecting People and the Environment Against Harmful Ozone Pollution

A few months back, President Obama visited several kids receiving treatment for asthma at the Children’s National Medical Center in Washington, DC.  Afterwards, he reflected on the critical importance of environmental safeguards, such as those to limit ozone pollution, saying:

[E]very time America has set clear rules and better standards for our air, our water, and our children’s health—the warnings of the cynics have been wrong.  They warned that doing something about the smog choking our cities, and acid rain poisoning our lakes, would kill business.  It didn’t.  Our air got cleaner, acid rain was cut dramatically, and our economy kept growing.

In just a short few weeks, Obama will have his first test of whether he’s prepared to follow through on those words, and frankly, to make good on his legal obligation to do so, when the Environmental Protection Agency (EPA) announces whether or not it will establish a more protective national standard to limit ozone air pollution.  The agency is under a judicial order to complete its review of the current National Ambient Air Quality Standard (NAAQS) for ozone and to propose strengthening it, if necessary, by December 1.  The Clean Air Act requires the EPA to set the ozone NAAQS at a level “requisite to protect the public health” with “an adequate margin of safety.” That’s a standard that requires the agency to only consider public health and forbids it from considering polluters’ clean-up costs — not an accident of drafting, by the way, but rather a clear reflection that Congress intended for the EPA to make sure the nation’s air was safe to breathe.

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Obama’s Path to Progress: Reducing Climate Disrupting Emissions from Power Plants

Last week brought a string of bad news as far as global climate disruption goes.  The bummer parade began Sunday with the release of the Intergovernmental Panel on Climate Change’s (IPCC) Fifth Assessment Synthesis report, which painted the direst picture yet of the looming global climate disruption threat, finding that “Continued emission of greenhouse gases will cause further warming and long-lasting changes in all components of the climate system, increasing the likelihood of severe, pervasive and irreversible impacts for people and ecosystems.”  Before it was possible for anyone to catch their breath, the mid-term election results delivered another punch to the environmental gut, as a wave of anti-environmental candidates emerged victorious, securing Republican control of the U.S. Senate and expanding their control of the U.S. House of Representatives.  The cherry on top came when Sen. James Inhofe (R-Okla.), a politician best known for writing an entire book in which he dismissed climate disruption as the “greatest hoax ever perpetrated on the American people”—confirmed that he would chair the Senate Committee that will conduct oversight on the Environmental Protection Agency’s (EPA) efforts to reduce U.S. greenhouse gas emissions.

Things look grim, but not all hope is lost for making meaningful progress on the issue of climate disruption.  While a comprehensive bill to reduce greenhouse gas emissions is unlikely to emerge from Congress anytime soon, President Obama already has ample authority to tackle the largest emitters using the existing provisions of the Clean Air Act, as the U.S. Supreme Court has repeatedly confirmed.  Fortunately, Obama is already putting that authority to good use with a pair of pending rules that would establish national performance standards to limit greenhouse gas emissions from future and existing fossil-fueled power plants.  These rules make up one of the 13 essential regulatory actions highlighted in CPR’s recent Issue Alert on safeguards that the Obama Administration can and should implement before its term in office expires.  By finalizing these regulatory actions, Obama can not only deliver significant benefits to the American public; he can also help secure his legacy on important public health, safety, and environmental issues.

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SBA Office of Advocacy Continues to Carry ‘Water’ for Big Business

Apparently undeterred by all the bad press it has received lately, the Small Business Administration’s (SBA) Office of Advocacy has cast its controversy-attracting lightning rod ever higher in the air by issuing a feeble comment letter attacking the Environmental Protection Agency’s (EPA) pending rulemaking to define the scope of the Clean Water Act (“Waters of the US rule”).  The letter is just the latest evidence that the SBA Office of Advocacy has no interest in working to advance the unique interests of real small businesses—in accordance with its clear legal mandate—but instead is entirely focused on seeking to block those rules that are opposed by large business interests and their conservative allies.  

In its recent scathing report, the Government Accountability Office (GAO) raised several disturbing questions about whether and to what extent the SBA Office of Advocacy is actually fulfilling its statutory mission of serving as a “voice for small businesses within the federal government.”  Of immediate relevance here, one of the key issues identified in the report was that the SBA Office of Advocacy was never able to provide any evidence of small business input it received to inform its decision intervene in rules or the substance of its comments letter.  In other words, the SBA Office of Advocacy could never prove that its interventions were every actually prompted by small business concerns.  As described below, the SBA Office of Advocacy’s comment letter on the EPA’s Waters of the US rule only adds to these questions—and its provides additional impetus for needed reforms and increased congressional oversight to ensure that the agency is not wasting taxpayer money and helping large businesses to the direct detriment of the small firms they are supposed to be helping.

 

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Crain and Crain are Back, and This Time They're Working for the National Association of Manufacturers

Having thoroughly tarnished their own reputations as well as that of the Small Business Administration’s (SBA) Office of Advocacy, economists W. Mark Crain and Nicole V. Crain are now preparing to make the big leap from thoroughly discredited academics to straight up shills for corporate lobbyists working to undermine public protections.  The National Association of Manufacturers (NAM), an industry trade group that vehemently opposes such policies as cleaning up air pollution and improving worker safety, yesterday announced that it will release a report tomorrow, prepared by the Crains, that purports to measure the “annual cost of federal regulations.”  That’s essentially what the Crains have been claiming to do for the Office of Advocacy until now, so it’s good news that at least it won’t be taxpayer money that’s footing the bill for their slanted research this time.

Just to review the bidding, in 2010, the SBA Office of Advocacy rather infamously sponsored a similar report by the Crains.  The key finding of the 2010 Crain and Crain report, which antiregulatory members of Congress and allied business groups and advocacy organizations have wasted little opportunity to cite, purported to find that the total costs of federal regulation in 2008 was $1.75 trillion.  

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No, the GAO Didn’t Say EPA’s Cost-Benefit Analyses are Bad—But Here’s What We Should Take Away from Their Report

If you’re an antiregulatory, anti-environment member of Congress, such as Sen. David Vitter (R-LA) or Darrell Issa (R-CA), how do you get the Government Accountability Office (GAO) to issue a report that criticizes the cost-benefit analyses that the Environmental Protection Agency (EPA) has performed on some of its recent rules?  That’s easy—you simply ask for one.  Then, when the GAO issues the report, like it did a few weeks back, you can begin issuing press releases filled with invective and righteous indignation.  The report’s findings, you can assert, are smoking-gun evidence that the EPA is running amok, issuing burdensome rules that are harming small businesses and families.  And just like that, you’ve conjured the latest antiregulatory, anti-EPA scandal du jour out of thin air.

Vitter and Issa have followed this playbook to a T and will no doubt continue trying to spin political gold out of this meaningless hay as part of the Republican’s broader strategy of using antiregulatory rhetoric to undermine the work of the Obama Administration while simultaneously boosting their electoral prospects in the fast approaching mid-term elections.  “Rather than using a fair and open rulemaking process, EPA pushed through regulations using sloppy analysis without sufficiently informing Congress or the public of the economic impact,” Issa predictably huffed following the report’s release.

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The GAO’s Scathing Report on the SBA Office of Advocacy: 15 Big Revelations

As I noted here last week, the Government Accountability Office (GAO) published a report that delivered a scathing review of the Small Business Administration’s (SBA) Office of Advocacy.  The GAO report’s general objective was to assess whether and to what extent the SBA Office of Advocacy is fulfilling its core mission of serving as a “voice for small businesses within the federal government,” and accordingly looked at two of its most important activities for carrying out that core mission: sponsoring small business-centered economic research and participating in individual rulemakings that have a significant impact on small business interests.

In contrast to most GAO reports—which are conspicuous for avoiding controversy and their dry, moderate tone—this one offered some uncharacteristically strong criticisms of the SBA Office of Advocacy.  For example, after rejecting the SBA Office of Advocacy’s feeble excuses for not taking any steps to verify the quality of information contained in a series of controversial studies on regulatory costs that the agency had sponsored, the GAO report opined, “We acknowledge that these reports may not necessarily be representative of all Advocacy’s research efforts, but not substantiating the quality of the information in even one study could call into question the credibility of Advocacy’s research program.”  (See page 15.)  Elsewhere, the GAO report took the SBA Office of Advocacy to task for its complete failure to document their roundtable discussions, noting that this failure made it “difficult to determine the extent to which small businesses and related entities were represented at these events.”  (See page 18.)

If the GAO seems frustrated, it’s for good reason.  Their review of the SBA Office of Advocacy’s activities produced the following 15 disturbing revelations:

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CPR’s Persistent Watchdogging of Embattled SBA Office of Advocacy Prompts Scathing GAO Report

Earlier today, the Government Accountability Office (GAO) published a scathing report, criticizing the regulatory work and research conducted by the Small Business Administration’s (SBA) Office of Advocacy.  For the past several years, CPR has worked to bring much-needed attention from policymakers, the press, and the public interest community to the SBA Office of Advocacy, which has long leveraged its powerful position in the rulemaking process to oppose stronger safeguards necessary for protecting people and the environment.  Critically, as CPR’s work reveals, the beneficiaries of the SBA Office of Advocacy’s interventions have been large corporations and trade groups, to the detriment of the small businesses they are actually supposed to be helping.

The report, Office of Advocacy Needs to Improve Controls over Research, Regulatory, and Workforce Planning Activities, was conducted in response to a request for a review of “Advocacy’s activities” from the Subcommittee on Financial Services and General Government within the Senate Committee on Appropriations.  The report notes that the subcommittee’s request was made because “[q]uestions have recently been raised about Advocacy's efforts to represent small businesses in regulatory activities and some of its research on small business issues.”

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Regulatory Tsunami? What Regulatory Tsunami?

Sometime last Friday—the Friday before the Memorial Day holiday weekend—the Obama Administration quietly issued the Spring 2014 Regulatory Agenda.  It’s becoming something of a tradition for the Administration to release this semiannual document on classic “take out the trash” news days in this fashion.  The Fall 2013 Regulatory Agenda was similarly released to whatever the opposite of fanfare is on the day before Thanksgiving, while the Spring 2013 Agenda came out the day before Independence Day.

It’s hard to blame Obama’s political folks for resorting to these kinds of tricks to bury the news about the release of the regulatory agenda, since it always elicits the same “the sky is falling” panic from corporate interests and their allies in Congress and conservative think tanks.  They issue their press releases and reports—indignant outrage on full display—about how the regulatory agenda supplies the latest evidence of the Obama Administration’s so-called “regulatory tsunami” or “flood” or “avalanche” or whatever overblown meteorological metaphor happens to strike their fancy on that particular day.

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CPR Member Scholars to Congress: Judicial Review Provisions of CFTC Reauthorization Bill Need Another Look

Yesterday, CPR Member Scholars sent a letter to House Representatives about their concerns with Section 212 of H.R. 4413, the Consumer Protection and End-User Relief Act.  This provision would add a new Section 24 to the Commodity Exchange Act, establishing specific requirements for judicial review of rules adopted by the Commodity Futures Trading Commission (CFTC).  H.R. 4413 is on the short list for a floor vote in House.

As the letter explains, several aspects of Section 212 “raise significant problems.”  One provision would authorize courts reviewing CFTC rules to modify and enforce as modified those rules.  This is a huge departure from how judicial review of rules normally takes place, including judicial review carried out under the Administrative Procedure Act, which essentially authorizes a court to only affirm or set aside a rule in whole or in part. In other words, the Courts interpret laws, they do not write them.  Of this provision, the Scholars write, “Our system of government simply does not contemplate granting a court the regulatory power both to reject an agency’s rule and then force adoption of a different rule preferred by the court itself.”

Another provision of Section 212 would allow any parties involved in a judicial challenge to a CFTC rulemaking to apply to the court “for leave to adduce additional evidence,” provided that the party can show “that the additional evidence is material and that there was reasonable ground for failure to adduce it before the Commission.”  This change would be unprecedented and generally applies, if ever, to court challenges to agency orders. This change would open the door to special interests inserting themselves even further along in the regulatory process, slowing down implementation of needed rules even further. Given that those interested parties would be free to submit to CFTC any and all evidence they wish on a particular CFTC rule, there should be no “reasonable ground” for those parties to fail to submit such information during the rule-making process, rather than later during litigation.

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