Search

The Small Business Administration's (SBA) Office of Advocacy is tiny and largely unaccountable, but it wields surprising power over the federal regulatory system. In its day-to-day work, the SBA Office of Advocacy has pursued a determined anti-regulatory agenda, focusing on forming alliances with big businesses, and especially trade associations that lobby on behalf of large corporate interests, and working to block any regulations that they might find inconvenient to their bottom line, even at the cost of properly safeguarding people and the environment. This work, of course, strays far from its statutory mission of advancing the interests of small businesses that may lack the resources or expertise to field expansive lobbying efforts in Washington.This report details one example of the SBA Office of Advocacy's troubling work on behalf of a powerful trade association that undermines its mission to advance the interests of real small businesses. It looks at how the SBA Office of Advocacy has worked side-by-side with the American Chemistry Council to block, delay, and weaken the Occupational Safety and Health Administration's (OSHA) pending silica rule.

“Accidents” and Institutional Failure The gradual demise of the regulatory system has left major manufacturing sectors adrift. Some operate without any meaningful regulatory oversight. Others are blanketed with detailed regulatory requirements but, on the rare occasions when inspectors show up to check compliance, enforcement actions are erratic and unpredictable and penalties are relatively low. These circumstances provide the owners and operators of plants and production sites with strong incentives to avoid substantial investments in upfront compliance costs, especially safety and pollution control equipment. Instead, they consciously take the risk of waiting to see if they will be caught. Admittedly, that outcome would be unpleasant, but it is also one that seems increasingly unlikely. Compounding the challenge of motivating compliance is the reality that the national political environment is dominated by angry allegations that overregulation is killing the nation’s economy. The spectacle of Obama administration political appointees appearing before disdainful House Republicans further suggests that companies may self-regulate as they see fit.

Thus criminal justice tells us where the moral boundaries are, where the line lies between good and bad. It patrols those boundary lines, day and night, rain or shine. It shows the rules directly, dramatically, visually through asserting and enforcing them. (There are lessons from non-enforcement, too: from situations where the boundaries are indistinct, or the patrol corrupt or asleep; and society is quick to learn these lessons, too.) Lawrence M. Friedman, Crime and Punishment in American History White Collar Neglect American law provides federal and state prosecutors with powerful authority to charge individuals and corporations with crimes and to win, but they rarely pursue such cases. This paradox is especially poignant with respect to criminality that kills or injures workers or consumers, or that causes irretrievable damage to natural resources. Prosecutors have largely turned a blind eye to such violations, depending instead on a broken regulatory system to deter illegal behavior. To be sure, some of the criminal statutes that apply to health and safety offenses treat them lightly: purveyors of tainted food or grossly negligent employers face misdemeanor charges providing for prison terms of a year or less. Rather than working to develop cases that overcome these weaknesses by, for example, charging multiple violations that add up to significant jail time, prosecutors have largely abandoned those fields. One conundrum running throughout the field of neglected criminal enforcement is whether to charge corporations or their employees. The decision is admittedly complex, but forgoing enforcement altogether should not be a third and favored option. As a matter of principle, corporations should be subject to prosecution when the violations were endemic to the corporate structure, as opposed to the brainchild of isolated, rogue employees. Individuals can and should be charged alongside their corporate employers, providing a different kind of deterrent to future malfeasance.

We set out to compile a list of rules and policies that could be implemented by state and local governments to provide better protections for U.S. workers. This manual includes more than two dozen such ideas, organized into thematic chapters: Chapter 1: Empowering Workers, with proposals designed to strengthen workers' individual and collective power to demand changes in their workplaces; Chapter 2: Making Sure Crime Doesn't Pay, with ideas for strong enforcement of workplace health and safety rules that will punish bad actors and deter similar behavior; Chapter 3: Strengthening Institutions, with recommendations intended to bolster government agencies' efforts to protect workers. The manual is drafted in clear and concise language and it presents each recommendation as a direct solution to an enduring problem in the workplace. The authors also helpfully provide examples when the recommendations are based on successfully implemented programs. Our hope is that this manual will be a starting point for discussion among our allies, especially groups that are new to the health-and-safety arena.

In a landmark series of reports issued on June 26, 2014, the Environmental Protection Agency (EPA) put the seven jurisdictions that pollute the Chesapeake Bay on notice that their plans for reducing nitrogen, phosphorous, and sediment fall short of where they must be to make cleanup by 2025 a reality. By EPA’s reckoning, Pennsylvania and Delaware were furthest off the mark, but Maryland, New York, Virginia, and West Virginia face EPA action if they fail to substantially improve their plans. Of the seven jurisdictions, only Washington, D.C. escaped serious criticism.

This report identifies 13 essential regulatory actions that agencies are working on right now to address critical public health concerns. All of these actions can and should be completed before President Obama leaves office.The report examines each of the regulatory actions individually, describing (1) why the regulatory actions are needed for protecting people and the environment, (2) the ongoing delays that have blocked their progress to this point, (3) what the final rules should say, and (4) the remaining steps that need to be taken to complete the rules. This examination will make clear that all of the rules will deliver important protections for public health, safety, and the environment and that completing the rules will be a relatively easy lift for the Obama Administration, provided that it brings to bear the necessary political will.

In May 2009, President Obama issued an Executive Order on Chesapeake Bay Protection and Restoration, declaring the Bay a national treasure and signaling that EPA will play a strong role in leading Bay cleanup. The order marked a dramatic departure, offering the promise of federal leadership on Bay cleanup. The following year, EPA issued a Chesapeake Total Maximum Daily Load (TMDL), a pollution budget for Bay states. Faced with a federal commitment, the states have begun work on complying with the TMDL. One Bay-wide approach under consideration is a market-based initiative, water quality trading, that would allow polluters to trade pollution credits. In this white paper, CPR's Chesapeake Bay experts warn that such an approach has largely failed elsewhere, and that the success or failure of a Bay trading regime rests on whether Bay states can meet a number of several threshold criteria, including: Broad participation in the program, including from "nonpoint" pollution sources; Genuine accountability, so that credit trades actual translate into pollution reductions, not simply paper savings; Resources from the states sufficient to operate an accountable trading regime in all its complexity; Rules that avoid pollution hot spots; A continuation of traditional regulatory controls that would create an incentive for participation in the program; Transparency from EPA and the Bay states, so that compliance can be monitored by all.

Over the next four years, the nation will face a daunting to-do list of public health, safety, and environmental challenges. If progress is to be made on these challenges, the Executive Branch must take the lead.President Barack Obama has broad authority over the Executive Branch’s various regulatory agencies, including the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and the Occupational Safety and Health Administration (OSHA). Existing statutes authorize these agencies and the White House itself to address the greatest public, health, and safety challenges. So if progress is to be made, President Obama will need to unleash this potential by making full use of his authority to manage agency activities by issuing Executive Orders. He can use these orders to direct the agencies to focus on high priority regulatory initiatives and to streamline the processes by which they carry out their statutory missions.This white paper recommends seven Executive Orders for the second term of the Obama Administration, all of which are directed at addressing critical public health, safety, and environmental challenges. Each Order directs government agencies to take specific steps to create meaningful new safeguards for people and the environment. Adopting and successfully carrying out these recommendations would help to cement President Obama’s legacy as a strong defender of public health, safety, and the environment.

Congress enacted the Occupational Safety and Health Act more than 40 years ago. A transformative law at the time it was passed, the OSH Act has not proved nimble enough to address the evolving challenges faced by U.S. workers. In this paper, we discuss how changes to the OSH Act and its implementing regulations and policies could better empower workers to ensure that all workers have safe and healthy workplaces. We focus on workers and their power to influence the policies that keep them safe and healthy on the job. Numerous issues affect workers’ health and safety, from workers’ compensation reform to health care policies to wage and hour problems, but we focus here on health and safety regulation by federal agencies.Worker empowerment: We propose strenghtening education and training requirements as the first step toward empowering workers. To ensure that new knowledge and training can be put to use, we propose establishing a private right-of-action to enforce the OSH Act, much like the "citizen suit" provisions of environmental laws.Enforcement: We urge Congress to amend the OSH Act to increase criminal fines and jail time for employers who violate the statute and its impelementing regulations. Civil enforcement could be enhanced through use of administrative compliance orders, the Responsible Corporate Officer doctrine, the Alternative Fines Act, and inflation-adjusted penalties. We also encourage OSHA to revamp its procedures for investigating fatalities and involving workers and their representatives in enforcement proceedings.Administrative issues: Recognizing OSHA's need for additional resources, we suggest that Congress and the agency explore whether certain programs (e.g., the Voluntary Protection Program) should be funded through user fees. We also discuss OSHA's role in overseeing state-plan programs. We urge Congress to abolish the split-enforcement model that relies on the independent Occupational Safety and Health Review Commission to adjudicate cases. Finally, we discuss reforms to the rulemaking process that would speed the development of new safety and health standards.

Tucked in a corner of the Old Executive Office Building, an obscure group of some three dozen economists exerts extraordinary power over federal rules intended to protect public health, worker and consumer safety, and the environment. Known officially as the Office of Information and Regulatory Affairs (OIRA), this unit reports to the director of the White House Office of Management and Budget (OMB), but operates as a free-ranging squad that pulls an astounding number of draft regulatory actions — some 6,194 over the ten-year period covered in this report — into a dragnet that operates behind closed doors. No policy that might distress influential industries, from oil production to coal mining to petrochemical manufacturing, goes into effect without OIRA’s approval.This white paper is the first comprehensive effort to unpack the dynamics of OIRA’s daily work, specifically with regard to the only information that is readily available to the public about its internal review process: records of its meetings with lobbyists. These records are perhaps the only accessible accounting of OIRA’s influence, and they demonstrate that OIRA has persistently ignored the unequivocal mandates of three presidents — Bill Clinton, George W. Bush, and Barack Obama — by refusing to disclose the differences between regulatory drafts as they enter review and the final versions that emerge at the end of that process. This study reveals that OIRA routinely substitutes its judgment for that of the agencies, second-guessing agency efforts to implement specific mandates assigned to them by Congress in statutes such as the Clean Air Act, the Food Quality Protection Act, and the Occupational Safety and Health Act. In so doing, OIRA systematically undermines the clear congressional intent that such decisions be made by specified agencies’ neutral experts in the law, science, engineering, and economics applicable to a given industry.

For the last two decades, scientists have amassed evidence that bisphenol A (BPA) poses a threat to human health. Although scientists have targeted BPA as a public health concern, plastics industry lobbyists have attempted to thwart the efforts of federal, state, and local authorities to reduce exposure to BPA. This paper reviews the major arguments advanced by the plastics industry and debunks them as, “myths,” that public health officials must reject. The five topics covered include: The myth of scientific consensus on safety; the myth that only studies complying with, “Good Laboratory Practices,” guidelines are adequate for making regulatory decisions; myths about the science of BPA exposure and metabolism; economic myths related to restrictions on BPA’s use; and the myth that state-based regulation creates an unmanageable, “patchwork,” of rules. After critiquing the facts and policy implications of each issue, the authors conclude with suggestions regarding how federal agencies can coordinate their work to better protect the public from the risks posed by BPA and other endocrine disrupting chemicals.

Health and safety laws have always been justified as manifestations of congressional authority to regulate and protect the free flow of interstate commerce under Article I, section 8 of the Constitution. Professor Steinzor argues that reliance on the Commerce Clause can support next generation proposals, including a National Environmental Legacy Act proposed by Professor Alyson Flournoy, which would require that any action on federal land involving the consumption or destruction of resources must be sustainable, as well as pending climate change legislation. But, Steinzor says, a far more desirable constitutional foundation for such laws is the General Welfare Clause found in Article I, section 8. The Commerce Clause has the important deficit of focusing on commercial transactions between two entities now in existence, while next generation laws must focus on the preservation of natural resources for us by future generations not now in existence. Steinzor argues that the Supreme Court has long recognized a state “police power” to protect public health and preserve the general welfare outside the constricting context of commercial transactions. The Court could and should read an analogous federal police power into the General Welfare clause given global threats such as climate change. She locates her proposal in work on the concept of an affirmative constitution by Professor Robin West, among others.

The BP oil spill in the Gulf of Mexico is destined to take its place as one of the greatest environmental disasters in the history of the United States, or for that matter, of the entire planet. Like so many other disasters on that list, it was entirely preventable. BP must shoulder its share of the blame, of course. Similarly, the Minerals Management Service (MMS) – since reorganized and rebranded – has come under much deserved criticism for its failure to rein in BP’s avaricious approach to drilling even where it was unable to respond to a worst-case scenario in a responsible and timely fashion. But the problems run much deeper than a single risk-taking company and a single dysfunctional regulatory agency. This report sketches out widespread regulatory failure, touching several agencies of the federal government and affecting several critical environmental statutes. Prepared by Member Scholars of the Center for Progressive Reform (CPR), it has two goals: (1) to identify how and why the regulatory system failed to protect the public and environment and prevent the BP disaster, and (2) to recommend the priority reforms that are essential to correct these regulatory deficiencies. The report begins by laying out the shortcomings in the primary statute under which deepwater oil drilling is regulated – the Outer Continental Shelf Lands Act (OCSLA) – and outlines key reforms needed to provide the authority necessary to protect the public interest. It then turns to systemic problems within the agency charged with regulation of deepwater oil drilling under the OCSLA – the Mineral Management Service (MMS), renamed the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) in the wake of the disaster. These include problems of agency capture and inadequate funding. The third topic addressed in the report is the role of the National Environmental Policy Act (NEPA) – how and why this landmark statute was disabled from performing its critical role in the case of the BP well, and what regulatory changes can ensure that it functions effectively in the future. The report next details the problems that surrounded the implementation and enforcement of the Endangered Species Act (ESA) as it applied to oil drilling and recommends several key reforms. The report then discusses a systemic problem that is a theme in each prior section and that specific statutory reforms cannot fully remedy: obstacles to making sound regulatory decisions in the face of uncertain, low probability risks of potentially catastrophic or irreversible harm. This section highlights a common sense solution: adoption of a precautionary stance. A precautionary approach would replace the current widely-adopted presumption that regulation must await a high – and often unattainable – degree of certainty, even when the potential costs are irreversible or catastrophic. In the last sections of the report, we step back to look at the regulatory system from a broader perspective. We consider first how the regulatory system and its failures in this case were caused in part by the absence of coherent policies on energy and climate change. Our current policy provides vast incentives for risky oil and gas development like deepwater drilling and few for low-carbon alternative energy sources. In the wake of yet another painful lesson on the cost of our current incoherent approach, it is time to focus political attention on the difficult but necessary task of debating and adopting a coherent and sound energy policy. In the final section, we step back geographically to suggest why another lesson of this disaster is that the United States should undertake to learn more from the experience abroad, offering the example of the North Sea. Had we been paying closer attention, the investigations and reforms in the wake of the infamous Piper Alpha spill or the Bravo platform blowout might have offered insights to help us avoid this disaster.

For almost all of the last 30 years, cost-benefit analysis (CBA) has been the principal yardstick by which federal regulatory agencies measured the value of regulatory protections for health, safety, and the environment. During that time, its failings have been laid bare repeatedly. It overstates the “costs” of regulation, often because it relies on inflated estimates from industry, and understates the benefits, sometimes ignoring huge benefits altogether because their dollar values are not readily fixed. It has been subject to gross political manipulation. And it has produced absurd results, leaving people and the environment vulnerable to unnecessary and unjustifiable risks.While proponents of CBA sometimes acknowledge that their method of regulatory impact analysis is flawed, they routinely assert that there is no better method. This white paper demonstrates otherwise, proposing that agencies adopt a method of regulatory decisionmaking called “pragmatic regulatory impact analysis” (PRIA). In many ways, PRIA represents a a return to the original “pragmatic” approach to regulatory decisionmaking that agencies employed before the advent of CBA. PRIA would:1. Focus on the decisionmaking criteria that Congress established in the various the health, safety, and environmental statutes;2. Take into account the informed input of a broad range of agency experts with relevant expertise regarding the risk to be addressed and how best to respond to it; and3. Seek to fulfill the precautionary objectives of these statutes by enabling agencies to take regulatory actions consistent with the best judgment of fully informed agency experts and administrators.PRIA would require agencies to make their decisionmaking more explicit and transparent by adding three procedural reforms:1. Pre-decisional development. A document labeled a “pragmatic regulatory impact analysis” (PRIA) would be developed as soon as an agency begins the process of considering a new regulation. At the outset, the PRIA would serve as the repository of the substantive issues the agency’s multi-disciplinary team believed it must inves tigate before formulating an actual rulemaking proposal. PRIAs would thus become the blueprint for the process, undergoing constant change, as the agency understood the issues better.2. Public notification. The PRIA document would be published before a Notice of Proposed Rulemaking (NPR) is released. An NPR is a standard rulemaking document in which an agency typically announces a proposed rule, providing along with it an explanation of how it tentatively resolved each of the preliminary issues that needed to be sorted out in order to justify its proposed rule. The PRIA document would function as a discussion draft of the NPR by offering a clear and concise overview of the key issues an agency must resolve before it can issue a NPR. PRIA therefore would not only assist agency officials in formulating a NPR, it would provide the public with the background to the NPR in an accessible and understandable format.3. Public input. In appropriate situations, agencies could invite public comment on the PRIA document. Under current practice, an agency sometimes issues an Ad vanced Notice of Proposed Rulemaking (ANPR), which proposes various policy options to the public and requests comment on them. But the PRIA document would provide a more in-depth analysis of the issues at stake and the advantages and disadvantages of different policy options. Accordingly, it would produce more informed public input and be of more assistance to the agency.

Each year dozens of workers are killed, thousands of children harmed, and millions of dollars wasted because of unjustifiable delays in federal regulatory action. Such delays in regulatory action have become commonplace, part of the wallpaper of Washington’s regulatory process for the protector agencies-the Consumer Product Safety Commission (CPSC), EPA, the Food and Drug Administration (FDA), the National Highway Traffic Safety Administration (NHTSA), and OSHA.Despite its significance, the problem of regulatory delay and the costs it generates has been virtually ignored in the debate over the general wisdom of the U.S. regulatory system over the last 30-plus years. Opponents of the regulatory system have deliberately framed this debate in terms of the “costs and benefits” of regulatory action, implying that regulatory inaction caused by regulatory delay is somehow cost-free. The one-sided nature of this debate is perhaps best exemplified by the White House Office of Management and Budget’s annual Report to Congress on the Benefits and Costs of Federal Regulations, as required by the 2001 Regulatory Right-to-Know Act. These annual reports document in painstaking detail the quantified and monetized costs and benefits of regulatory action, providing aggregate estimates of these costs and benefits for many of the regulations that federal agencies have issued over the previous year as well as over the previous ten years. Not once, however, have these reports ever sought to document the costs of regulatory delay.The problem with ignoring the costs of regulatory delay is that it provides an incomplete picture of the value of the U.S. regulatory system - one that is inevitably skewed against stronger regulatory protection. Broadly speaking, the purpose of this white paper is to begin the process of filling in the rest of this picture, so that in the future the debate over the general wisdom of the U.S. regulatory system can continue on more robust and balanced terms. To this end, this white paper presents three case studies. Each tells the story of a recent or ongoing example of regulatory delay that has caused real harm to Americans and their environment.

In the last several years, dramatic failures of the nation’s food safety system have sickened or killed tens of thousands of Americans, and caused billions of dollars of damages for producers and distributors of everything from fresh vegetables to granola bars and hamburger meat. In each case, the outbreak of food-borne illness triggered what can only be described as a frantic scramble by health officials to discover its source. Inevitably, the wrong lead is followed or a recall is too late or too narrow to prevent further illnesses, and the government has to defend itself against withering criticism. Americans expect more from the experts at the Food and Drug Administration (FDA) and their counterparts at the Department of Agriculture, but the simple truth is that they are ill-equipped to deliver. The food safety system typifies the debilitated state of the entire regulatory system that Americans rely upon to protect their health, safety, and environment. The five “protector agencies” - FDA, the Occupational Safety and Health Administration (OSHA), the Consumer Product Safety Commission (CPSC), the National Highway Traffic Safety Administration (NHTSA), and the Environmental Protection Agency (EPA) - all grapple with hefty responsibilities to protect the American public from constantly evolving hazards.The agencies have done an adequate job of eliminating or managing the basic hazards of modern industrial society. Every new car has seatbelts and passive restraints, the use of lead in gasoline and residential paint has been eliminated, and air quality has improved in many areas. Unfortunately, this progress has been marred by a series of high-profile failures. OSHA has failed to prevent musculoskeletal injuries, the leading cause of workplace illness; billions of consumer products enter the country from foreign manufacturing sites that are never inspected by product safety specialists; and the EPA is just beginning to map out a strategy for combating climate change, a threat that could eliminate 40 percent of species and lead to the relocation of hundreds of millions of people by the turn of the century. The agencies’ inability to act swiftly and decisively in the last several decades is largely the result of four problems: Severe shortfalls in funding, outdated authorizing statutes, political interference, and an aging, demoralized civil service. Regulatory dysfunction begins with funding gaps that defeat agency efforts to fulfill the statutory mandates assigned by Congress. These shortfalls, which push the agencies into a state of constant default on their most important missions, are compounded by congressional neglect of its oversight and reauthorization responsibilities. With two exceptions - the Consumer Product Safety Commission Improvement Act and the FDA Amendments Act of 2007 - Congress has made no effort to renew and update the statutes in at least two decades. Compounding these problems, the protector agencies operate under the watchful eye of White House political staff who frequently and freely substitute their own judgments for those of agency staff, offering a back door for special interests disappointed in decisionmaking by agency experts to exert inappropriate influence, most often behind closed doors. The solutions to these problems - statutory amendments, an improved budget process, decentralized decisionmaking, and civil service reforms - are not simple fixes. But the alternative is a regulatory system that reverts to a purely reactionary mode, leaving public health, safety, and environmental protection to the whims of the marketplace.

Finding current environmental law dysfunctional, Wood builds a case for an approach based on the public trust doctrine.

The Environmental Pendulum A Quest for the Truth about Toxic Chemicals, Human Health, and Environmental Protection. R. Allan Freeze. University of California Press, Berkeley, 2000. 337 pp. $50. ISBN 0-520-22046-3. Paper, $19.95. ISBN 0-520-22047-1. Freeze, a distinguished expert on groundwater, argues for a middle ground environmental policy against the polarization that he believes has favored the extremes of neglect and overkill.