The Federation of American Scientists has launched a new online archive that collects the reports of the Office of Technology Assessment (OTA). OTA was a research arm of Congress tasked with providing members with the best available scientific and technical information on emerging issues. Unfortunately, OTA was abolished in 1995 as a result of Newt Gingrich's Contract with America.

The online archive is a central collection of the office's reports. The website will also regularly provide updates on congressional efforts to resurrect OTA.

OTA Archive

The Center for Progressive Reform (CPR) has a new paper that cautions against federal climate change legislation that would preempt the efforts of state and local governments to stem greenhouse gas emissions. The paper states, "Federal climate change legislation must reflect the longstanding principle that federal regulation is the 'floor' upon which more stringent state regulation may be built."

In the U.S., state and local governments have been the only parts of the public sector to act on climate change. The CPR paper states, "During almost a decade of federal inaction on climate change, beginning with the Bush Administration's decision to walk away from its campaign promise to participate actively in Kyoto treaty negotiations, state and local governments have led the way in adopting programs to control these harmful emissions." It goes on, "Every state in the country has adopted some kind of policy or law to deal with climate change."

Industry lobbyists often push for explicit preemption in federal law in order to prevent states from imposing more progressive laws and regulations. If industry can control the situation at the federal level and handcuff individual states, it will have shaped public policy for the entire country.

Industry representatives argue, without express preemption, businesses and consumers would have to deal with a "patchwork" of regulations. Uniformity is better, they say. The CPR paper debunks that myth and calls the argument a "smokescreen for deregulation."

The preemption issue is likely to be a sticking point as the Senate debates the Lieberman-Warner Climate Security Act (S. 3036) this week. Gristmill, a leading environmental news blog, says the debate over how to deal with state climate policy will be one of the top four issues likely to ignite controversy on the Senate floor. The other three are "cost containment" (an off-ramp built in to the bill in case the direct economic impacts are viewed as too onerous), nuclear power, and the system for distributing credits under the cap-and-trade system being proposed.

The debate will likely have little practical implications. Disarray among Senate Democrats is so profound that the prospects for passage dwindle each passing day, according to insiders.

A startling article in yesterday's Roll Call (subscription) makes Democratic leaders look like the Bad News Bears of public policy. The article is peppered with quotes from unnamed congressional aides who bear witness to the disorganization and intra-party bickering that has characterized developments surrounding the Climate Security Act. From the article:

"We are about to take up the most important fight of our generation, and we have no strategy, no message and no plan to get out of this," one senior Senate Democratic aide said.

Another senior Senate Democratic staffer echoed those sentiments: "Everyone knows this bill is going nowhere. The president is opposed to it. The House is not inclined toward action on this, and now we're going to spend valuable floor time on a bill that's going nowhere ...

Two MIT professors, Nicholas A. Ashford and Charles C. Caldart, have just written a book called Environmental Law, Policy, and Economics. From the summary:

This book offers a detailed discussion of the important issues in environmental law, policy, and economics, tracing their development over the past few decades through an examination of environmental law cases and commentaries by leading scholars. The authors focus on pollution, addressing both pollution control and prevention, but also emphasize the evaluation, design, and use of the law to stimulate technical change and industrial transformation, arguing that there is a need to address broader issues of sustainable development.

While the book gets into the nuts and bolts of environmental policy, it also discusses where environmental policy intersects with administrative law (chapter 5) and information disclosure (chapter 10).

Find out more here.

The U.S. Environmental Protection Agency recently made changes to its program for studying the toxic effects of industrial chemicals — the Integrated Risk Information System (IRIS). Under the revised process, the White House Office of Management and Budget (OMB) is given unprecedented control over the content and conduct of these studies.

Today, OMB Watch released a factsheet "OMB Interferes in IRIS Assessments of Toxic Chemicals," which details the problems with the revised process. The factsheet answers the following questions:

• What is IRIS?
• How does OMB interfere in IRIS assessments?
• How does the new IRIS assessment process make matters worse?
• Why is the IRIS assessment process important?

Also today, the House Science Committee's subcommittee on Investigation and Oversight held a hearing on the changes to the IRIS process. Committee members and witnesses focused their discussion on the transparency, or lack thereof, in OMB's review of IRIS assessments and on the slow pace of completion of IRIS assessments. (EPA has completed only four assessments in the past two years.)

The committee heard from John Stephenson, the Director of Natural Resources and Environment for the Government Accountability Office (GAO). Stephenson's testimony was based on a recent GAO report critical of OMB's involvement in the IRIS assessment process.

Stephenson's primary complaint about the IRIS process is that any comments from OMB or other federal agencies will not be disclosed to the public. Stephenson also warned additional steps included in the revised process could further slow EPA's efforts to complete assessments.

Rep. Brad Miller (D-NC), chair of the panel, released a document that reveals the opinions of EPA staff scientists on OMB's role in the IRIS assessment process. In responding to GAO's report, staff involved in the IRIS program said OMB's comments are often "troubling to address" and the OMB review process "has added tremendously to the time it takes to release" draft and final assessments.

An editorial in today's New York Times condemns a policy, known as preemption, which prohibits consumers from suing manufacturers if a product harms a consumer, so long as that product is in some way regulated by the federal government. The editorial calls preemption a "perverse legal doctrine" and warns that as it "continues to spread, the public will be deprived of a vital tool for policing companies and unearthing documents that reveal their machinations."

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 a product causes harm. Tort law provides that opportunity by allowing citizens to seek damages from the makers of those products.

A Times investigation into the birth control patch Ortho Evra proves why positive law sometimes does not work, and why tort law must be preserved:

For years, Johnson & Johnson obscured evidence that its popular Ortho Evra birth control patch delivered much more estrogen than standard birth control pills, potentially increasing the risk of blood clots and strokes, according to internal company documents.

But because the Food and Drug Administration approved the patch, the company is arguing in court that it cannot be sued by women who claim that they were injured by the product — even though its old label inaccurately described the amount of estrogen it released.

In their attempts to shirk accountability by erasing the possibility of tort claims, pharmaceutical companies and other industries have found a friend in the Bush administration. The administration has advanced a pro-preemption argument in a number of policy areas covering everything from cars to mattresses.

According to a recent paper from the Center for Progressive Reform, the administration has been fighting for preemption on two fronts. "One form has been to intervene on the side of industry in tort litigation by the filing of amicus briefs arguing that the plaintiff 's claims against the corporate defendant are preempted by the agency's regulations or its general authority over the health or safety matters at issue," the paper argues.

The Bush administration has also tried, and been largely successful, in writing regulations that expressly preempt tort law, according to the paper. Federal agencies, including the FDA and the Consumer Product Safety Commission, have inserted preemption language into the preamble of regulations.

Under Bush, agencies have been inserting the language at the last minute, after the public comment period has closed. In the case of an FDA regulation on drug labels, "FDA deprived most of the public — including state officials, Congress members, and interested individuals and citizen groups — of any chance to weigh in on the matter before the rule was finalized."

Ruth Marcus has written a great op-ed in today's Washington Post. Marcus discusses recently-discovered lapses in the FAA's aircraft inspection program and connects it to the broader pattern of anti-regulatory policies in the Bush administration:

The lapses are symptomatic, too, of much deeper problems across the government. These are not outbreaks of sheer, "heck of a job" incompetence. There is some of that, certainly, but this administration's allergy to government intervention and affection for the private sector have contributed to a spate of regulatory failures, from lead in imported toys to dangerous prescription drugs to subprime mortgages.

The course of these events traces a depressingly familiar arc: paeans to the free market followed by disaster followed by grudging acceptance of regulation. Just a year ago, Treasury Undersecretary Robert Steel proclaimed that new regulation of financial markets was unnecessary because "sophisticated financial firms have both the direct financial incentives and expertise to provide for effective market discipline." Right. Just ask Bear Stearns.

Check it out here: "When a Watchdog Isn't"

Today, OMB Watch launched a web-based Regulatory Resource Center at www.ombwatch.org/regresources. The Resource Center provides tips for advocates who want to get involved in regulatory decision making and educational resources for anyone interested in how the federal regulatory process works.

The first part of the Regulatory Resource Center is the Advocacy Center. The Advocacy Center shows users how to comment on federal regulations and provides instructions for using Regulations.gov, the government's portal for public comments. The Advocacy Center also has instructions for filing a petition for rulemaking and tips on how to find rules in the Federal Register.

The second part of the Resource Center is the Policy Library. The Policy Library contains a flowchart showing how rules move through the regulatory pipeline; a list and brief description of rulemaking agencies; background information describing how the regulatory process works from beginning to end; and a glossary of common terms relating to regulation. The Policy Library also has a reference section, which provides links to legislation, executive orders, and government reports on regulatory policy.

In October 2007, OMB Watch released a developmental version of the Regulatory Resource Center and surveyed the public for comments and ideas. Responses to the survey were overwhelmingly positive. A number of respondents complimented OMB Watch on its efforts to centralize all information about the regulatory process in one place. One respondent called it "a tremendous gift to citizens and to students."

OMB Watch will continue to improve the site based on public needs, comments, and concerns. We welcome and encourage feedback at any time. Please e-mail us with your comments at RegResources@ombwatch.org.

OMB Watch recently conducted an informal survey asking people to identify questions they would like to ask candidates for federal office. The survey focused on questions related to government transparency.

After more than two thousand people responded to the survey, the results are in. Responses show that, more than anywhere else, Americans want greater transparency in the Executive Branch, particularly the White House.

Based on the survey, here are the top five questions we hope voter groups, media outlets, and the general public will ask candidates:

1) Manipulation of Facts
Concerns have been raised about possible manipulation of information produced by agencies and the influence of the White House over agency decisions. Do you support disclosure of all communications between the White House (including the Office of Management and Budget and other executive offices) and agencies regarding administrative decision-making and information disclosure?

2) Executive Privilege
What do you believe are the appropriate limits of executive privilege in the disclosure of information to Congress and the public?

3) Whistleblowers
Under the Sarbanes-Oxley law, only corporate whistleblowers revealing financial abuses are protected. In order to strengthen accountability against corporate crimes, would you support pending legislation that expands whistleblower protection rights to private sector workers who report violations of any federal public health and safety laws?

4) Presidential Records
Executive Order 13233 limits access to presidential records under the Presidential Records Act by giving former presidents the power to effectively veto the release of their records. Do you commit to reversing Executive Order 13233 to restore public access to presidential records after twelve years?

5) Health, Safety & Environment
Given the importance of health and safety information, how would you ensure that the public has easy access to understandable information about the air they breathe, the water they drink, and the products they use?

"These top questions provide the tools to gauge where the candidates fall on the openness-secrecy spectrum," said Sean Moulton, OMB Watch's Director of Federal Information Policy.

The list of questions for candidates is part of OMB Watch's 21st Century Right to Know Project which has the end goal of developing open government policy recommendations for the next White House and Congress.

Congress created the Mine Safety and Health Administration (MSHA) in 1977, placing a new federal focus on miner safety and health. In the past two years, a spike in coal mine fatalities and high-profile coal mine disasters have prompted many Americans and Congress to look to MSHA to improve miner safety, but years of budget cuts and the loss of qualified employees have left the agency struggling to fulfill its mission.

A new article by OMB Watch, the latest in our Bankrupting Government series, tracks the history of budget and staffing cuts at the agency with a particular focus on MSHA's coal mine safety and health program.

Click here for excerpts and neato line graphs

Posted by Matt Madia, 09:27:41 AM

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