Over at Climate Progress, CPR Member Scholar Lisa Heinzerling critiques Cass Sunstein's new book, “Simpler: The Future of Government."
Rules on worker health, environmental protection, food safety, health care, consumer protection, and more all passed through Sunstein’s inbox. Some never left.
In Sunstein’s account, OIRA’s interventions also ensured “a well-functioning system of public comment” and “compliance with procedural ideals that might not always be strictly compulsory but that might be loosely organized under the rubric of ‘good government’.” No theme more pervades Sunstein’s book than the idea that government transparency is essential to good regulatory outcomes and to good government itself. The deep and sad irony is that few government processes are as opaque as the process of OIRA review, superintended for almost four years by Sunstein himself.
The full piece is here.Full text
From Member Scholar Lisa Heinzerling's new article in the Yale Journal on Regulation:
With President Obama's nomination of Gina McCarthy as the new Administrator of the Environmental Protection Agency (EPA), much attention has turned to her record as the EPA official in charge of air pollution programs, experience as the head of two states’ environmental agencies, and views on specific policies and priorities. And with the President’s nomination of Sylvia Mathews Burwell to be the Director of the Office of Management and Budget (OMB), attention has likewise turned to her record and experience. Few recognize, however, the tight relationship between the two nominations: the Obama administration’s approach to governing will make Ms. Burwell Ms. McCarthy’s boss. ...
But it turns out the OMB itself seems not to want to accept accountability for running U.S. environmental policy. In a new law review article by Cass Sunstein, the former head of the OMB office that acts as the White House’s regulatory gatekeeper, Sunstein insists that he actually didn’t have very much power. In fact, he says, decisions about rules most frequently turned on other players in the White House, Cabinet heads outside the agency proposing the rule, or even career staff in other agencies or in the OMB itself. In Sunstein’s rendering, it appears that everyone is responsible for the shape and scope of environmental policy in this administration. Which means no one is accountable.
Much more in Who Will Run the EPA?Full text
A quick update on the OIRA leadership front: Dominic Mancini has been named the Deputy Administrator of OIRA, and now “leads” the office from this position, an OMB spokesperson says via email (The Hill was up with this news a bit earlier today). Boris Bershteyn’s appointment as Acting Administrator has ended, the spokesperson said. Bershteyn had reached a time limit under the Federal Vacancies Reform Act, which puts restrictions on acting officers performing in Senate-confirmed positions. By the letter of the law, the Administrator of OIRA is a Senate-confirmed position; the Deputy Administrator is not.Full text
Last week Rena Steinzor wrote here that the Acting Administrator of the Office of Information and Regulatory Affairs (OIRA), Boris Bershteyn, was approaching a time limit under the Federal Vacancies Reform Act. That law stipulates that a temporary appointee in a Senate-confirmed position can generally serve for no more than 210 days, unless a nomination is pending, which in this case it is not.
Where Bershteyn was previously listed as the OIRA Administrator, the White House has now removed his name.
Complying with laws is important. It’s also important for the President to take the next step: nominating a new OIRA Administrator, someone with a vision for protecting public health, safety and the environment and who can take the office in a new direction.Full text
CPR Member Scholar Robert L. Glicksman will testify at a hearing this morning of the House Judiciary Committee’s Subcommittee on Regulatory Reform, Commercial and Antitrust Law.
The hearing will promote the notion of "The Obama Administration's Regulatory War on Jobs, the Economy, and America's Global Competitiveness" (sounds awfully familiar), and the solution, the majority will say, is a series of anti-regulatory bills (many of which passed the House, but went nowhere in the Senate, in the last Congress).
Professor Glicksman’s testimony argues that the proposed regulatory process legislation amounts to a solution in search of a problem:
The proponents of making it more difficult for agencies to regulate tend to ignore the very real costs that result from a failure to regulate even though significant costs may flow from decisions not to regulate just as they do from decisions to regulate. … The supporters of the proposed regulatory process bills discussed above are right about one thing: The U.S. regulatory system is not promoting the public interest as well as it should be. But their diagnosis of the problem could not be farther from the mark, and their proposed bills would only make the situation worse. To fix the regulatory system, we should instead focus on finding ways to help agencies effectively achieve their statutory missions, such as protecting people and the environment.
Glicksman’s testimony addresses the REINS Act, Regulatory Accountability Act, and other anti-regulatory messaging efforts.Full text
Just how accountable is an employer to an employee if the employee is only working for one day?
In areas from construction to farm work, warehouse labor to hotel housekeeping, contingent work is growing or already common. Rather than hire permanent, full-time employees directly, many employers hire workers indirectly through 3rd party agencies, or on contracts as short as a day. Too often, workers in these fields see little job security, low wages, minimal opportunities for advancement, and, all too often, hazardous working conditions. Contingent workers are disproportionately racial minorities and often come from vulnerable socio-economic backgrounds.
A new CPR report released today, At the Company’s Mercy: Protecting Contingent Workers from Unsafe Working Conditions, looks at the hazards in these four work areas and the unique safety challenges that arise from contract-based work.
The report argues that safety dangers are magnified because contingent workers don't always get the training they need, and high injury rates are acceptable to many employers since the employees are non-permanent, effectively expendable. Employers who hire workers on a contingent basis do not directly pay for workers’ compensation and health insurance, and are therefore likely to be insulated from the insurance premium rate increases that would ordinarily follow frequent workers’ injuries.
The report issues a set of recommendations for improving safety specifically for contingent workers. Congress can amend the Occupational Safety and Health Act to include a private right-of-action that allows any person to bring suit in federal court against any other person who violates provisions of the statute or its implementing regulations. And the Occupational Safety and Health Administration (OSHA) should take a number of steps, including establishing rules to require employers to provide better training; strengthening enforcement in industries where contingent work is prevalent; and issue ergonomics standards in the industries in which contingent workers suffer high rates of musculoskeletal injuries.
The report was written by CPR Member Scholars Martha McCluskey, Thomas McGarity, and Sidney Shapiro, and Senior Policy Analyst Matthew Shudtz.Full text
CPR Member Scholar Noah Sachs published an op-ed in the Richmond Times-Dispatch this morning critiquing the Independent Agency Regulatory Analysis Act. That bill would allow the White House to review rules proposed by independent federal agencies. Writes Sachs:
Imagine if important government agencies, purposely designed by Congress to be insulated from political pressure, suddenly had to bend to White House wishes.
Campaign contributors might then try to influence Nuclear Regulatory Commission decisions on safety standards for aging nuclear plants. Big Wall Street donors might have a backdoor route to kill Securities and Exchange Commission regulations on stock fraud.
While the new bill aims for transparency, we're likely to get a black hole of decision-making instead. Far from improving government, the bill will make important government decisions subject to endless internal review and closed-door meetings with industry lobbyists.
Sachs argues that Virginia Senator Mark Warner, who has supported independent agencies in the past (Senator Warner voted in favor of the Dodd-Frank bill, which created the Consumer Financial Protection Bureau), should not be co-sponsoring a bill that will effectively undermine them.Full text
One of the biggest challenges for the EPA’s Integrated Risk Information System (IRIS), a database for toxicological information and human health effects data that plays a role in many regulatory safeguards, is how slowly it produces chemical assessments. One of the reasons: chemical industry interests have flooded the comments on many IRIS assessments with pages of non-germane information for EPA to wade through.
In a letter today to EPA Administrator Lisa Jackson, CPR President Rena Steinzor and Policy Analysts Wayland Radin and Matthew Shudtz urge the agency to put reasonable limits on IRIS comments. They looked at 70 comments on 5 recent IRIS assessments (totaling 2800 pages, with attachments), and found that “ interested parties, particularly industry trade associations, frequently submit comments that do not provide relevant and timely information to EPA, but rather waste EPA’s time and resources and delay badly needed public protections.”
The dockets in the five assessments included comments that were redundant, raised non-germane issues, called for reconsideration of settled issues, or were unnecessarily long submissions. From the letter:
We recommend that EPA take strong steps to establish more effective filters on the deliberate loading of the record with redundant and irrelevant information. The agency should develop criteria for submitting comments and, if submitters do not voluntarily comply with this guidance, the agency should excise the documents filed by egregious violators from consideration. EPA is no less entitled than the judiciary to control the manner in which commenters appear before it to make their arguments. The courts have developed limits on the scope, format, and content of such submissions that greatly facilitate their timely decision-making.
Here’s a final compilation of our posts on the Clean Water Act at 40:
The Coalition for Sensible Safeguards has put together more links to commentary on the anniversary from around the web.Full text
A host of concerned groups and individuals wrote to Secretary of Agriculture Tom Vilsack today urging him to withdraw proposed changes to poultry inspection rules until food safety and worker safety concerns are addressed. The letter was signed by a range of food safety and worker safety groups and individual signers, including CPR Member Scholars Martha McCluskey, Thomas McGarity, Sidney Shapiro, and Rena Steinzor.
The letter explains the food safety and worker safety issues at stake, and takes USDA to task for its rushed approach:
The Food Safety and Inspection Service (FSIS) developed the proposal with limited public input. The agency did not adequately consult with its inspection advisory committee, nor did the agency hold public meetings to solicit the views of the public. Previous agency proposals that sought to substantially change parts of the federal inspection program have been debated and discussed in public forums so that stakeholder input could be provided prior to announcing a formal proposal.
Previously in this space, Rena Steinzor explained USDA’s proposed rule and the potential food safety and worker safety consequences, and described how USDA’s de-regulatory proposal was not subject to the rigorous analysis or interagency review that most regulatory proposals are.Full text