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Tuesday, August 23, 2005

Counting the Cost of Bush Reg "Reforms"
Interesting scholarly article reviewing the Bush administration's distortions of the regulatory process, particularly the "reforms" championed by OIRA head John Graham:

This article is a review of the regulatory process reforms championed by John Graham's OIRA. Rather than attempting to view them as pro-regulation or antiregulation, I believe it is more useful to ask to whom these various regulatory reforms give power in the regulatory process and whether or not they raise the cost of issuing a regulation. This paper will show that many of these reforms empower the President and those with access to the executive office of the President. Many also raise the cost of the regulatory process to agencies. The second of these impacts is clearly anti-regulatory in its results but the first is not necessarily so.
This article will argue for a more accurate criticism of the Graham reforms: that they will concentrate rulemaking power in a small group of elites. The reforms have further tipped the balance of power in regulatory policy toward powerful interest groups and away from agency bureaucrats, private individuals, and small businesses. While e-rulemaking in particular has been sold as opening up the regulatory process, it is being implemented in a way that is more likely to render the public comment process meaningless than to increase the impact of public involvement (Noveck 2004).

Download Stuart Shapiro, "An Evaluation of the Bush Administration Reforms to the Regulatory Process"

Posted by Robert Shull, 06:58:06 PM

Sunday, August 21, 2005

Easing Burdens on Scientific Evidence
Be sure to catch the latest article from CPR member scholar Lisa Heinzerling, "Doubting Daubert, forthcoming in the Brooklyn Journal of Law & Policy. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court announced that it was liberalizing the rules on admissibility of expert scientific evidence by rejecting a requirement that such evidence be generally accepted in the scientific community. Daubert has had, Heinzerling notes, just the opposite effect from the one the Court said it intended. Among other reasons:

it has narrowed rather than enlarged the range of expert evidence admitted by courts, as courts have taken dicta from the case and applied them as a rigid test;
it has encouraged more junk science in legal cases rather than less, as courts have scrutinized studies paper by paper rather than looking, as scientists do, at the larger universe of studies to identify the weight of the evidence;
it has encouraged the industry assault on science by reiterating the industry talking points about "junk science" -- talking points that have been circulating precisely because science so often reveals that corporate special interests are harming us all;
and it has legalized science, as legal precedents codify scientific (or anti-scientific) conclusions and then are applied in subsequent cases as the law.

Proposals to extend Daubert to the administrative setting should be rejected, Heinzerling concludes, and the courts should pull back from Daubert itself.

Download the article.

Posted by Robert Shull, 06:25:46 PM

Friday, August 12, 2005

OIRA meets over MSHA Diesel Rule
OIRA and the Department of Labor met with representatives from the National Mining Association, FMC Corporation (a major chemical producer), as well as a lobbyist from Patton Boggs over the Mine Safety and Health Administration's diesel rule.

On June 6, MSHA published the Diesel Particulate Matter Exposure of Underground Metal and Nonmetal Miners Rule. The rule changes the way MSHA calculates diesel particulate matter emission limits in underground mines. According to the agency, the new calculations, based on permissible exposure limits measured by elemental carbon, are comparable to the former measurements, which measured limits based on total carbon emissions. In comments filed on behalf of the United Mine Workers of America, however, Advanced Technologies and Laboratories International senior scientist James Weeks points out that the new emissions standards are actually weaker than the older standards. By basing emission standards on elemental carbon rather than total carbon emissions, the new emissions standard will no longer capture the hundred of organic compounds combined with diesel particulate matter, many of which are carcinogenic.

The new regulation also contains other provisions that weaken the protection and could ultimately render the regulation impotent. Mines will be able to receive an unlimited number of one-year special extensions, administered by an MSHA district manager. Moreover, the new regulation now requires the agency to consider economic feasibility rather than just technical feasibility when considering special extensions for compliance with the rule. This new provision could open a floodgate of special extensions that will allow mines to avoid implementing the emissions standards altogether.

MSHA originally established the health standard using total carbon emissions on Jan. 19, 2001. Industry challenged the rule and organized labor intervened. The settlement agreement that followed required MSHA to promulgate a further series of rules addressing specific issues, including several that are addressed in this rulemaking. The new standard is an interim final rule. MSHA is required to create a more stringent standard in 2006, revising the concentration limit to 160 micrograms per cubic meter of air.

Read comments on the regulation by the United Mine Workers of America and the Center for Progressive Reform.

Posted by Genevieve Smith, 03:14:53 PM

Regulation and Competitiveness
The industry-funded position in favor of rollbacks often includes an argument that regulation to protect the public is a burden on American businesses that hinder them from competing in the global marketplace. The evidence from the economics literature tells us something much, much different. Learn more in this OMB Watch issue brief, Regulation and Competitiveness.

Posted by Robert Shull, 12:16:20 PM

Thursday, August 11, 2005

The lobbying Roberts failed to disclose
Supreme Court nominee John Roberts explained his failure to disclose a lobbying contact on behalf of sunscreen makers by noting that he had considered the meeting an act of legal representation somehow distinct from lobbying, because the substance of his conversation with the administration was that the industry would litigate labeling requirements as a First Amendment problem.

Legal vs. lobbying? Consider what the Lobby Disclosure Act has to say about what constitutes a lobbying contact:

oral or written communication	check
made to a covered official	check: OMB and FDA leadership are "covered officials"
on behalf of a client	check: representing the industry
regarding federal legislation, federal rules or regulations, administration of a federal program or policy, or nomination or confirmation for an appointment requiring Senate confirmation	check: FDA's proposed sunscreen labeling regulations

Find out more about what constitutes lobbying here, courtesy of NPAction, a resource from OMB Watch to help nonprofits learn more about lobbying and other means of effective advocacy.

Posted by Robert Shull, 05:58:42 PM

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