[Reg•Watch Update: Oil and Gas Companies Win, Polar Bears Lose Feb. 6]

The Department of Interior is all set to approve Feb. 6 a lease program for oil and gas companies to operate in Chukchi Sea off Alaska's coast. The timetable for a decision on whether to list the polar bear under the Endangered Species Act is much looser. The agency was required to make its decision on the polar bear by Jan. 9, but it is now aiming for "the very near future," according to AP.

Yesterday, the Senate Environment and Public Works Committee pressed an administration official, U.S. Fish and Wildlife Service Director Dale Hall, on the connection between the two decisions. If Interior chooses to list the polar bear before approving the lease program, the agency would have to analyze the impacts of oil and gas activity on the polar bear's health and habitat. If approval of the lease plan comes first, the polar bear is on its own.

The delay in the decision to list the polar bear reeks of a favor to oil and gas industry execs who would prefer to be able to drill in the region without taking special precautions to protect the species. In opening statements, Chairwoman Barbara Boxer said, "I find it curious that while your agency in the Interior Department is dragging its feet to list the polar bear, another agency in the Interior Department-the Minerals Management Service is charging full speed ahead to allow new oil and gas drilling activities in one of biological hearts of the polar bear's domain-the Chukchi Sea."

But the Bush administration would never put industry interests ahead of its obligation to govern in a timely and responsible fashion, right? According to AP, "Hall told the Senate committee the delay is not based on unresolved scientific issues, but — given the issue's high profile — a desire to assure that Congress and the public will understand the decision when it is made public."

Reg•Watch is not moved by Hall's concern. Congress and the public understand exactly what is going on — and it stinks. (On a related note, for another example of a Bush official patronizing the American people, read this post.)

A recent article from the Minneapolis Star Tribune reminds us industry meddling in the regulatory process is not solely a federal problem, it is occurring at the state level as well:

After three years of research, [Minnesota] was ready to impose the nation's first water-quality limit for acetochlor, a potent farm chemical that was washing into rivers and lakes.

But after hearing from scientists from agribusiness giants Monsanto and Dow AgroSciences, the Minnesota Pollution Control Agency (MPCA) decided to allow more than twice the concentration of the chemical in rivers than it had originally proposed.

As a result, three of five rivers that the state had previously classified as "impaired" by acetochlor, including a popular trout stream in southeastern Minnesota, will no longer be considered polluted.

The whole thing sounds pretty fishy. MPCA was prepared to set a standard of 1.7 parts per billion for the chemical, but, after the agriculture industry representatives presented published studies the agency had not reviewed during the decision making process, MPCA weakened the standard to 3.6 parts per billion.

A former MPCA staffer "said he is baffled that the state would spend years of research preparing to establish an official standard of 1.7 parts per billion, and then change its mind in the space of a few weeks," according to the article.

Controversies like this one may become more common as more states push for progressive environmental policy to make up for the federal government's failures. Hopefully, industry influence will not succeed in derailing state efforts as it has federal regulation.

(Thanks to Center for Science in the Public Interest for pointing this story out.)

Elections are the time when politicians pay the most attention to people and issues, and therefore the best time to ask them questions about how they plan to govern. OMB Watch wants your help in figuring out the best questions on government transparency that can be put to the candidates. Take just a few minutes to answer our survey and vote on your five favorite questions on the issue of government transparency and openness. We will then share the top questions with the news media and other organizations that have direct contact with candidates.

Government openness affects every issue from budget and taxes, to the regulatory process, to non-profit advocacy. The range of questions tries to reflect this breadth so check them and see which are most important to you.

Take the Open Government: What We Need To Know Survey today.

Last week, the House Energy and Commerce Committee began an investigation into the use and federal regulation of bisphenol-A (BPA), a chemical commonly found in a host of consumer products including CDs and baby bottles.

Reps. John Dingell (D-MI) and Bart Stupak (D-MI) wrote to seven manufacturers of infant products inquiring as to the chemical's use:

We have learned that BPA may be contained in the material used to line cans that contain infant formula and that BPA from this lining may leach into the formula itself, thereby exposing babies to BPA. We are interested to know how often BPA is used in such lining, whether the companies that produce the infant formula are aware that BPA is being used in this manner, and if they have tested their product for the presence of BPA.

The committee members also wrote to FDA Commissioner Andrew von Eschenbach asking about FDA's recent determination that BPA is not currently a safety concern and, therefore, not worth regulating:

On what studies is FDA basing the claim that there is no "safety concern at the current exposure level"? If FDA is relying on published studies, please provide us with the scientific citations from any studies used by FDA in making this determination.

The committee's oversight is welcome in light of recent evidence that another BPA study — this one conducted by the National Toxicology Program — gave improper weight to scientific studies sponsored by chemical makers. The study called the chemical's risks "negligible" — a conclusion which could undermine the argument in favor of BPA regulation. The National Toxicology Program has since announced it will conduct a thorough review of the study.

In November, Reg•Watch blogged about an FDA proposal that would allow drug companies to market drugs for unapproved uses by passing out journal articles and other studies. In a letter to FDA Commissioner Andrew von Eschenbach, Rep. Henry Waxman — whose committee had discovered the proposal — complained that, by creating the loophole, drug companies could promote their drugs using studies they fund themselves, free from FDA oversight.

After some prodding by Waxman's committee, FDA turned over a memo from a meeting between FDA officials and drug industry representatives including Dan Troy, a former FDA chief counsel. In another letter to von Eschenbach, Waxman expresses concern:

According to this memorandum, Mr. Troy and the other drug company representatives urged you to issue FDA guidance allowing the distribution of journal articles promoting off-label uses to protect the drug companies from "Federal prosecutors pursuing distributors of this information for criminal conduct."

This document raises questions about the rationale for the draft guidance.

For now, that's the end of the story, because FDA has refused to turn over any more documents relating to the proposal. FDA claims those documents are "predecisional" and therefore privileged information.

Never deterred by the administration's obstructionism, Waxman is demanding more information:

In your December 2l letter, you state that you are not providing the Committee with other documents or answering the Committee's questions because this information is "predecisional." This is no basis for withholding from the Committee communications about the use of joumal articles that FDA received from private drug companies. This is also no basis for withholding internal FDA communications where — as in this case — there is evidence that FDA's actions may be unduly influenced by regulated companies.

For copies of letters and more information from Waxman's committee, click here.

In a new article written for the American Constitution Society, Georgetown law professor David Vladeck examines a toubling yet underreported tactic the Bush administration has been using to undermine public health and safety protections: federal preemption of state tort claims.

Federal agencies are responsible for enforcing the positive law enacted by Congress. However, even when positive laws and regulations work, citizens must have an opportunity to seek legal redress if they are harmed by a product. Tort law provides that opportunity by allowing citizens to seek damages from the makers of those products.

The Bush administration is consistently conflating these two types of laws. In the article, "The Emerging Threat of Regulatory Preemption," Vladeck goes over several case examples in which federal agencies have written regulations that they claim "preempts" state tort law, thereby making it impossible for citizens to seek damages on products regulated by the federal government.

Preemption language has been included in all sorts of product safety regulations that cover everything from cars to mattresses. One FDA regulation preempts damage claims if a drug maker fails to warn consumers of a certain risk, so long as the drug has received FDA approval. In addition to robbing consumers of their right to sue, drug makers would have no motivation for monitoring the safety of their drugs after FDA approval.

Why would the Bush administration engage in such a broad attack on state law? One reason, Vladeck argues, is to help industry allies:

[T]here have been repeated charges that the regulators implementing this pro-preemption campaign have deep ties to the industries that will benefit. For example, the architect of the Food and Drug Administration's new preemption position is a partner at a major law firm where he specializes in representing drug companies regulated by the FDA — the very companies that benefit from the agency's new pro-preemption position.

As if the public health and safety ramifications of the campaign to render state law impotent was not enough, the administration is implementing these policies surreptitiously and undemocratically:

[A]gency decisions to extinguish common law remedies are not made in a transparent way. Agencies simply announce their conclusions in preambles, which are lengthy and jargon-filled explanations of agency regulatory action. Agencies do not go through notice and comment rulemaking to formulate their positions…Nor do agencies…provide states and local governments with notice and an opportunity to participate in any proceeding that may affect state and local law.

Read Vladeck's article here.

Two dozen scientists came from around the country to Washington this week to protest political meddling in decisions on endangered species protections, according to The Washington Post:

The scientists say political appointees at [the Department of] Interior, or those who report to them, have been altering their reports recommending "critical habitat" preservation to favor industries whose interests conflict with the findings.

The group of scientists, organized by the Union of Concerned Scientists and the Endangered Species Coalition, caught the ears of staffers for more than 20 legislators and Lynn Scarlett, Deputy Secretary for Interior.

Political manipulation of endangered species decisions has stayed in the news ever since an Inspector General report found a former Interior official, Julie MacDonald, had leaked documents to industry lobbyists and overruled scientific opinions on several endangered species listings. Since then, Interior reviewed eight decisions MacDonald was involved in and will revise seven.

The controversy over endangered species listings has flared up again as Interior is delaying a decision on whether to protect the polar bear. The polar bear's habitat is threatened by melting sea ice. The species would be the first to receive protection as a result of a symptom of global warming.

The New York Times published an edictorial yesterday speculating as to the Bush administration's motivations for delaying the decision. The Times argues a delay in the decision will be a windfall for the oil and gas industry.

The National Toxicology Program (NTP) will conduct a thorough review of a controversial assessment of the health effects of bisphenol-A, a chemical commonly found in a host of consumer products including CDs and baby bottles. NTP will give the report "unprecedented scrutiny," according to The Milwaukee Journal-Sentinel.

NTP's reproductive health panel released the report, which was roundly criticized by scientists and environmental advocates, last August . The report came on the heels of a National Institutes of Health study which found health problems in newborn animals exposed to bisphenol-A.

Critics complained NTP had relied on industry-funded science which downplayed the negative effects of bisphenol-A. The panel called the chemical's risks "negligible" — a conclusion which could undermine the argument in favor of bisphenol-A regulation. In December, a Journal-Sentinel investigation confirmed those complaints.

The Journal-Sentinel found the panel "gave more weight to industry-funded studies and more leeway to industry-funded researchers." In one case, "The panel accepted a Korean study translated by the chemical industry's trade group that found bisphenol A to be safe."

The report's authors conveniently omitted other studies which concluded bisphenol-A does pose a health risk: "The newspaper found that the panel missed dozens of studies publicly available that the newspaper found online using a medical research Internet search engine."

The panel's report has been the object of controversy for some time. Last March, OMB Watch reported on Sciences International, a contractor with ties to the plastics industry which had been hired by NTP to prepare the report. After it was alleged Sciences International's conflict of interest had led to suspect scientific research, their contract was terminated.

Stay tuned to Reg•Watch for more.

Richard Stickler, head of the Mine Safety and Health Administration, will remain in his post even though his 2006 recess appointment has expired. Late Friday, President Bush announced Stickler would remain on the job as an acting administrator. Stickler may continue in the interim role for another 210 days, according to the Associated Press.

Bush installed Stickler by recess appointment in October 2006 because several senators opposed his nomination. Stickler worked for Beth Energy Mines of Amity, Pennsylvania for 30 years, before heading the Pennsylvania Bureau of Deep Mine Safety from 1997 to 2003. According to the United Mine Workers (UMWA), mines run by Stickler had accident rates double that of the national average for six of eight years, including two fatal accidents at a mine Stickler managed for five years.

Mine safety has frequently been in the news over the past two years, usually for tragic reasons. In response to several mine disasters in 2006 (particularly Sago and Darby), Congress passed the MINER Act and mandated MSHA promulgate enforcing regulations within one year.

Stickler's record on enforcing the MINER Act has been mixed. MSHA has made little progress in implementing key provisions of the law, such as improving mine seals and mine rescue equipment, as a recent Washington Post article highlights. One bright spot came in December when MSHA levied a heavy fine against a delinquent mine operator as the MINER Act empowers the agency to do.

Stickler's record is not surprising — there has been a declining focus on ensuring mine safety during the Bush administration. A recent Department of Labor Inspector General report found that MSHA is conducting about one in seven of the inspections the law requires. Ultimately, MSHA's failures will be one of the many chapters in the Bush record that evince the administration's hostility toward public health, environmental and worker protections.

In 2007, new regulatory policies and the inability of federal agencies to protect the public made headlines more so than at any time in recent memory. Four themes dominated regulatory policy in 2007: White House influence over agency rulemaking activity and discretion; the inability of the federal government to ensure the safety of imported goods; the influence of industry groups; and the Bush administration's refusal to regulate in the face of overwhelming scientific evidence.

Click on these links for a recap of 2007's highlights and lowlights:

• White House Interventions
• Import Safety
• Industry Influence
• Ignoring Science