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Steinzor to Senate Subcommittee: What's the Cost of Preventing an Asthma Attack?

This morning, CPR Member Scholar and University of Maryland School of Law professor Rena Steinzor testified before the U.S. Senate Committee on Environment and Public Works Subcommittee on Superfund, Waste and Regulatory Oversight for a hearing focused on, "Oversight of Regulatory Impact Analysis for the U.S. Environmental Protection Agency Regulations." 

In her testimony, Steinzor noted the limitations of "Regulatory Impact Analysis," or RIA, which agencies are mandated to conduct on all rules they finalize and measures the rules' "costs and benefits."  When measuring the costs and benefits of EPA rules geared toward protecting the public health, safety and the environment, Steinzor noted that RIA comes up short, asking the Subcommitee members, "What's the cost of preventing an asthma attack?"

However, given EPA's mandate to conduct cost-benefit analysis on all rules she said, "EPA’s work in this area is the gold standard for all other government agencies.  Its elaborate studies invariably conclude that benefits exceed costs.  In fact, in the case of the Clean Air Act rules reserved for especially irrational condemnation by regulated industries, benefits exceed costs by a margin of 30 to one.  Rather than focus on the marginal improvements that GAO has recommended, the Subcommittee should applaud EPA’s diligent, thorough, and creative efforts to carry out one of the most difficult elements of its mission to preserve environmental quality."


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Pound-Wise and Penny-Foolish in the Chesapeake Bay

It’s a staple of the right-wing assault on government that “bloated” government programs, like those intended to protect the environment, are a burden to taxpayers. In my home state of Maryland, the numbers demonstrate otherwise. The percentage of taxpayer dollars spent by the Maryland Department of the Environment (MDE) is tiny and getting tinier.  In 2014, less than one-quarter of 1 percent of the state’s general funds were expended by MDE, a 40-percent reduction in this share since 2004.  In fact, MDE’s general fund budget actually shrank between 2004 and 2014 – not just in inflation-adjusted terms, but in absolute terms – even as the state budget increased by more than 60 percent.  

That’s not to suggest that the state abandoned environmental programs. Over this same period, Maryland created several major new revenue streams, including a Chesapeake Bay Restoration Fund, the Chesapeake and Atlantic Coastal Bays 2010 Trust Fund, and the local Watershed Protection and Restoration Funds, which provide hundreds of millions of dollars annually to restore the Chesapeake Bay and other waters of the state.  But those funds don’t conduct the sort of regulatory enforcement that MDE is charged with; they’re focused instead mostly on capital projects. Clearly, policymakers in Maryland are interested in funding such capital projects, but appear willing to neglect the need for scientists, engineers, inspectors, and other officials charged with implementing state and federal environmental laws.  

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Too Little and Far Too Late – EPA Finally Releases a Disappointing eReporting Rule

Last month, the Environmental Protection Agency finalized a long overdue rule that was designed, according to EPA’s description, to move the agency “into the 21st Century.” Since many of the rules’ provisions still will not be in effect more than two decades after the turn of the century, this rulemaking plays right into the hands of those who insist that the federal government cannot work efficiently — ironic, because efficiency is the very purpose of the eReporting rule. In this case, the absurdly slow pace of the rulemaking process and the final rule’s protracted implementation schedule also serves the critics’ agenda. Even after more than a decade in the making, the final rule hampers EPA’s ability to shine a light on the problem of underreporting of water pollution in the United States.

The National Pollutant Discharge Elimination System (NPDES) has long been the centerpiece of EPA efforts to implement the Clean Water Act. The success of the NPDES regime is largely attributable to the requirement that large “point sources” of pollution monitor their effluent discharge and provide publicly available reports on this pollution and any violations of their permits. This simple and transparent regulatory system provides a strong incentive for facilities to reduce pollution on their own, inviting legal action by EPA, the states, and concerned citizens for those who do not. Unfortunately, several decades into the digital age, many NPDES regulated point sources are still submitting mountains of paper work that rarely see the light of day, rather than easily obtainable, downloadable, and usable electronic data. 

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The Irony of the Sixth Circuit's Clean Water Rule Stay

Last week, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of implementation of the new Army Corps/EPA Clean Water Rule.  This sounds like a very big deal, and the state plaintiffs who won the stay will no doubt describe this as a major victory.  Those proclamations will conceal, however, a few layers of complexity and irony.

The legal basis for the ruling is an administrative law principle known as the logical outgrowth rule.  Under this principle, a final rule can be different from a proposed rule, but it still must be a logical outgrowth of that proposed rule; it cannot be something completely new.  That principle flows from the basic Administrative Procedure Act requirement for notice and an opportunity to comment.  Neither is present when an agency’s final rule does something no one reasonably could have expected, and upon which no one would have thought to comment.

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The Media Is Missing the Most Important Part of the VW Scandal

Courtesy of the New York Times, here’s a bit of reporting that is emblematic of the way the press has covered the Volkswagen emissions-cheating scandal:

Volkswagen said on Tuesday that the scandal would cut deeply into this year’s profit. And the company’s shares plunged again, ending the day 35 percent below the closing price on Friday, before news of the diesel deception broke. As a result, the company’s stock market value has declined about €25 billion in two days of trading.

The media have covered the VW story with great vigor, to my ear, more even than the GM ignition scandal that claimed more than 120 lives — the number that GM so acknowledges. But most of the VW coverage is about money, not health and not the environment, even though both are clearly in play.

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Gag Clauses Chill Consumer Rights

Modern-day snake oil peddlers may have found a way to keep consumers quiet about their ineffective products: non-disparagement clauses, also known as gag clauses. These clauses, slipped into the fine print of form contracts, can restrict a consumer’s ability to post negative reviews of a product online. Non-disparagement clauses, which can vary in scope, generally prevent consumers from publicizing negative reviews of a product or company. This restriction includes comments made on online forums like Yelp or even complaints to the Better Business Bureau. When a consumer violates the gag clause, the company often will enact punitive measures, like charging the consumer a financial penalty. As long as companies can get away with including hidden terms like non-disparagement clauses in their contracts, consumers will not be operating in a fair marketplace. Fortunately, the federal government has demonstrated its willingness to step in to protect consumers against non-disparagement clauses and more.


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New National Ambient Air Quality Standards for Ozone: A Primer

Last week, the U.S. Environmental Protection Agency (EPA) finalized new National Ambient Air Quality Standards (NAAQS) for ozone pursuant to the federal Clean Air Act. See 42 U.S.C. § 7409. The new regulation reduces both the primary and secondary NAAQS for ozone from 0.075 to 0.070 parts per million (ppm) (or from 75 to 70 parts per billion) averaged over eight hours in order to better protect human health, welfare, and the environment. The new regulation has not yet been published in the Federal Register, but it is available from the EPA.

NAAQS are one of the Clean Air Act’s primary mechanisms for protecting human health and the environment from air pollution. Such protections begin with the EPA Administrator designating criteria pollutants—pollutants that, when emitted into the air, “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare,” that come from numerous or diverse sources, and for which the Administrator expects to issue air quality criteria.  42 U.S.C. § 7408(a)(1). Ozone has been a criteria pollutant under the Clean Air Act since the beginning of the 1970 Act’s implementation.

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John Boehner, Volkswagen, and the Role of Government

The resignation of House Speaker John Boehner and the VW diesel car scandal -- two rather extraordinary events -- might not initially appear to be related, but there is a connection. The most conservative members of the Republican caucus celebrated Representative Boehner's resignation because they felt he did not fight hard enough to shrink the size of the federal government through more aggressive tactics, like government shutdowns. Although one of government's most important functions is to deter behavior such as that of VW, the radical Republicans would organize American society using only markets, not government. The difficulty with this stance is that corporations "cheating" consumers is an unavoidable aspect of capitalistic markets, making government regulation a necessity.

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Ten Things I Hate About Jeb's Antiregulatory Regulatory Reform Plan

Consistent with his ongoing efforts to distinguish himself among the Republican presidential candidates as a serious “policy wonk,” Jeb Bush, “rolled out” his “regulatory reform” plan last week.  The sad truth, though, is that the plan contains little of what might be considered sober or intellectually rigorous.   Rather, it is simply a mishmash of warmed over ideas from candidate Mitt Romney’s 2012 regulatory reform plan and from the various antiregulatory bills that have been festering in Congress the last several years, all served on a wilted bed of misleading data, astounding leaps of logic, and outright falsehoods.

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CPR's McGarity Responds to EPA's New Ozone Standard

The new primary ozone standard of 70 parts per billion (ppb) is definitely a step in the right direction, but it has taken EPA far to long too make this much-needed change.

We should not forget, however, that EPA Administrator Lisa Jackson sent a proposed standard of 65 ppb to the White House in August 2011, but was told explicitly by President Obama to withdraw it because the White House economists thought it would be too costly for business, despite the fact that this delay came at the expense of the health of vulnerable Americans. 

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