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Aug. 1, 2018 by Wendy Wagner

A Real, Not Faux, Transparency Proposal for Regulatory Science

Originally published on The Regulatory Review. Reprinted with permission.

In a previous essay, we critiqued the U.S. Environmental Protection Agency’s (EPA) recently proposed transparency rule, arguing that the proposal conflicts with best scientific practices and would further erode the EPA’s ability to do its job. According to supporters, the central goal of the proposed rule is to increase the transparency of regulatory science. Unfortunately, the proposal does not begin to deliver. No matter how many times the word “transparency” is repeated to characterize the proposal, its effects would reverse progress. It also gives appointees like former EPA Administrator Scott Pruitt and his successors unrestricted and unreviewable authority to reach politically motivated decisions that exclude high quality research.

Of all the problems that plague EPA today, ensuring scientific transparency is not all that difficult. A real transparency proposal, as opposed to the Pruitt EPA’s faux proposal, would closely track the standards developed by the scientific community and include the following five features.

1. Rebuttable Presumption. A commitment to transparency must not compromise the agency’s ability to use the very best information possible.

The faux transparency proposal would exclude research — regardless of quality — if the “dose response …

July 31, 2018 by Joel Mintz
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This op-ed originally ran in the South Florida Sun Sentinel.

Recent events have underscored the vital importance of effective environmental regulation for Floridians. Blue green algae — apparently caused by releases of contaminated water from Lake Okeechobee — has blanketed significant portions of our state’s east and west coasts, causing major economic losses and posing a threat to the health of coastal residents. Pro-active regulation and enforcement of environmental laws could (and should) have prevented these abysmal consequences.

In fact, lawsuits play a critical role in shaping the laws that guide government regulation of the environment; and the U.S. Supreme Court — which has lately been almost evenly divided in important environmental cases — often has the last word on the government’s crucial ability to protect public health and the environment from the perils of pollution.

President Trump’s controversial nomination of Judge Brett Kavanaugh to replace centrist …

July 31, 2018 by Lisa Heinzerling
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Originally published on The Regulatory Review. Reprinted with permission.

In the fitting last act of his corrupt reign as the Administrator of the U.S. Environmental Protection Agency (EPA), Scott Pruitt handed a gift to companies who profit from producing cheaper trucks by dispensing with modern pollution control equipment. He arranged for political appointees at EPA to issue memoranda that together promised that EPA would not enforce an existing legal limit on production numbers for the super-polluting trucks.

The memos had all the usual eyesores of Pruitt's approach to governing EPA: disdain for the law, dismissal of scientific evidence, scrambled logic, and contempt for the environmental mission intended for EPA. EPA's case for granting amnesty to the super-polluters was so threadbare that the U.S. Court of Appeals for the D.C. Circuit granted an unusual administrative stay of EPA's action while the court was considering a …

July 30, 2018 by Thomas McGarity
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This commentary was originally published by The American Prospect. 

Most of us take for granted the federal regulations that make our air cleaner, our drinking water purer, our food, highways, and workplaces safer, and our economic transactions less vulnerable to fraud and abuse. And few of us realize the extent to which those protections are subject to reversal by federal courts applying legal principles prescribed by the Supreme Court. If confirmed to the Supreme Court, Judge Brett Kavanaugh would be a fervent vote against even well-established forms of regulation.

A telling example of Kavanaugh’s ideological aversion to even minimal government regulation is his dissent in a case in which the Occupational Safety and Health Administration (OSHA) fined SeaWorld of Florida following a tragic incident at its Orlando facility in which a killer whale named Tilikum pulled a trainer off a platform and held her underwater until …

July 24, 2018 by Karen Sokol
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This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.

"This is a case about executive power and individual liberty." That is how Judge Brett Kavanaugh started the opinion he wrote for a three-judge panel of the D.C. Circuit Court of Appeals holding that the structure of the Consumer Financial Protection Bureau (CFPB) was unconstitutional. That opinion is one among many that reflects Supreme Court nominee Kavanaugh's belief that administrative agencies are in a constitutionally precarious position that demands strong judicial supervision.

Many believe that, as a result, a Justice Kavanaugh would be a reliable vote in favor of industry and against administrative agencies and the environmental, health, safety, and consumer protections they enforce. Others claim he would be "evenhanded" in cases challenging agency action and simply do his job as a judge by insisting that agencies …

July 19, 2018 by Daniel Farber
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This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.

Presidents control crucial government agencies with authority over the environment, food and drug safety, and workplace conditions. Through various environmental, health, safety, and other laws, Congress has given these agencies broad authority to issue rules and regulations that affect the lives of every American. But current law provides safeguards against arbitrary decisions – safeguards that Judge Brett Kavanaugh would weaken or eliminate if confirmed to the U.S. Supreme Court.

These safeguards are designed to promote public input and force agencies to disclose their evidence and reasoning to public scrutiny. Agencies must disclose proposed rules, obtain public comment, and then provide explanations of their decisions. As interpreted by the courts, this means an agency has to provide enough information to allow substantive comments, and it has to give a reasoned …

July 19, 2018 by Robert Glicksman
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This op-ed originally ran in The Hill.

Last month, two Inspectors General issued scathing reports about their departments' behavior. The Justice Department's IG got all the attention, while largely overlooked was a disturbing report from the Interior Department IG, who concluded that the agency had no reasonable rationale for halting a major study of the health risks of mountaintop removal mining. The study was already under way, and nearly half of its $1 million price tag had already been spent, but Secretary Ryan Zinke and his lieutenants pulled the plug, presumably because they didn't want to have to face its likely findings. They told investigators it was "because they did not believe it would produce any new information and felt costs would exceed the benefits."

The Trump administration's insistence on suppressing scientific evidence of health risks inconvenient to extractive industries is at once shocking and unsurprising …

July 17, 2018 by Alexandra Klass
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This op-ed originally ran in the Duluth News Tribune.

Any Minnesotan who has ever dipped a canoe paddle, pitched a tent, or laced up a hiking boot while visiting the Boundary Waters Canoe Area Wilderness can tell you why it is the nation's most-visited wilderness area and considered a crown jewel of Minnesota. Unfortunately, Twin Metals, a subsidiary of the Chilean mining giant Antofagasta PLC, has its eye on the area in hopes of operating a sulfide-ore copper-nickel mine, bringing one of the world's most toxic industries to the edge of the Boundary Waters. Despite the devastating impact expected on the local economy and environment, President Donald Trump's Interior Department is bending over backwards to support the push to pollute.

If allowed, Twin Metals is expected to locate its processing plant on the banks of Birch Lake, a popular fishing and recreation lake that flows into the …

July 10, 2018 by Matt Shudtz
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This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.

Last night, President Donald Trump set the stage for a contentious debate about American social and economic welfare in the decades to come, nominating a Washington insider with a narrow worldview to the Supreme Court. Brett Kavanaugh's opinions on issues related to reproductive and civil rights are at the forefront of many voters' minds, but there's another danger that deserves just as much attention: What Kavanaugh would do on issues involving protections for consumers, workers, and the environment if confirmed by the Senate. 

Trump and the current congressional majority are busy with their attempts at "deconstructing the administrative state." Kavanaugh might tip the balance in that direction on the Supreme Court, as well, particularly given his record of animosity against sensible safeguards during his time on the …

July 9, 2018 by David Driesen
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In addition to deciding the fate of a Supreme Court nominee, the Senate must soon consider whether to approve Brian Benczkowski as head of criminal enforcement for the Department of Justice and a nominee to replace Scott Pruitt as EPA administrator. In early 2017, I urged senators to fulfill their constitutional responsibilities by only approving nominees who would faithfully execute the laws of the United States. But the Senate approved Pruitt anyway, with disastrous results. The chamber now needs to play its constitutional role of protecting the rule of law from Trump’s relentless assault on our safeguards and our democracy.

The Constitution requires Senate confirmation, not to rubber stamp presidential appointments, but to ensure nominees are dedicated to carrying out the law. Alexander Hamilton explained in The Federalist Papers that the Constitution authorizes the Senate to disapprove of presidential nominees to discourage the president from nominating …

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Citizen Suits, Environmental Settlements, and the Constitution: Part II

Sept. 14, 2020

Citizen Suits, Environmental Settlements, and the Constitution: Part I