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Thursday, December 20, 2007

EPA Administrator Stephen Johnson yesterday rejected California's request to set its own vehicle emissions standard for greenhouse gases. (Click here for background.) An article in today's Washington Post summarizes the decision well:

Environmental Protection Agency Administrator Stephen L. Johnson yesterday denied California's petition to limit greenhouse gas emissions from cars and trucks, overruling the unanimous recommendation of the agency's legal and technical staffs.

The decision set in motion a legal battle that EPA's lawyers expect to lose and demonstrated the Bush administration's determination to oppose any mandatory measures specifically targeted at curbing global warming pollution. A total of 18 states, representing 45 percent of the nation's auto market, have either adopted or pledged to implement California's proposed tailpipe emissions rules, which seek to cut vehicles' greenhouse gas emissions by 30 percent between 2009 and 2016.

Under the Clean Air Act, EPA has the final authority to regulate air pollutants. But the law's authors recognized two things: California has special needs due to its severe pollution problem, and states are often innovators in environmental policy. Subsequently, the Clean Air Act allows EPA to grant California waivers to set its own programs and for other states to follow suit. California, "had never been denied a waiver in the law's 37-year history," according to the Post.

On regulating greenhouse gas emissions, Johnson and his auto industry friends have sounded a similar refrain. Celeste Monforton at the Pump Handle blog noticed an Alliance of Automobile Manufacturers (AAM) statement in support of the recently passed bill revising the federal fuel economy standard repeatedly used terms like "50-state" and "nationwide" to praise the standard.

Johnson defended his decision to reject the California petition saying, "The Bush Administration is moving forward with a clear national solution — not a confusing patchwork of state rules." In response, an AAM spokesman said, "We commend E.P.A. for protecting a national, 50-state program," instead of a "patchwork quilt."

As Frank O'Donnell at the Blog for Clean Air points out, the claim that a national standard is preferable to "a patchwork of state rules" is misleading:

This is baloney, of course. Johnson is implying (as the car companies have in their misleading rhetoric) that there are lots of different state standards. This is false. There is only the California standard, which other states by law can adopt.

In the 1970s, industry finally started supporting federal environmental regulations when they realized the alternative would be compliance with a variety of different state standards. Regulation at the federal level would be more manageable and allow industry groups to focus their lobbying efforts.

However, we have not yet reached a similar tipping point on greenhouse gas emission regulation.

The passage of the fuel economy reform bill and the denial of California's petition are not attempts to set strong federal standards, but attempts to nip state actions in the bud. Since innovative state policy is a proven driver of federal regulation, Bush and his anti-regulatory cronies can slow any form of government intervention by stripping the states of their ability to regulate.

Posted by Matt Madia, 10:41:51 AM

Tuesday, December 18, 2007

House Panel Moves Regulatory Analysis Bill

Last week, the House Small Business Committee unanimously approved H.R. 4458, the Small Business Regulatory Improvement Act of 2008 (SBRIA). Among other things, SBRIA would amend the Regulatory Flexibility Act to force agencies to perform yet more analysis of proposed regulations' impact, while continuing to allow industry lobbying groups to have access to agency proposals before they are released to the public.

The specters of "regulatory burden," "excessive paperwork requirements," and "bankrupting compliance costs" loomed over the mark-up hearing as Democrats and Republicans alike parroted the usual industry objections to regulation. (No one raised the opposition to the bill voiced by OMB Watch and a broad coalition of other groups expressed in a letter sent to all committee members.)

A press release from Chairwoman Nydia Velasquez (D-NY) touting the approval of the bill states, "Just this week, the Federal Register exceeded 70,000 pages for the year, making clear the threat that small businesses face in their path to success."

Huh? That's the Democrats' rationale for this legislation? Are the Federal Register pages literally blocking their path? Are owners and employees unable to traverse the hallways of their office because they are littered with old copies of the Federal Register? That certainly would be an impediment to success, but nothing that couldn't be solved with a well-organized office cleaning day.

Before moving to the House floor, the bill will also have to go through the House Judiciary Committee which has jurisdiction on the bill. (Because the bill would amend the part of the U.S. Code pertaining to administrative procedure, it is an administrative law issue and therefore falls under the jurisdiction of the Judiciary Committee's subcommittee on Commercial and Administrative Law.)

No word yet on hearings from the Judiciary Committee. Stay tuned to Reg•Watch for more.

Resources on SBRIA:

OMB Watch fact sheet on the bill

The Regulatory Flexibility Act, annotated as it would read if amended by SBRIA

Posted by Matt Madia, 04:17:35 PM

EPA Begins Rulemaking on Air Pollution Standard for Lead

Yesterday, EPA published an Advanced Notice of Proposed Rulemaking for its planned revision to the National Ambient Air Quality Standard (NAAQS) for lead. Lead is one of six pollutants regulated by the NAAQS program under the Clean Air Act.

An Advanced Notice of Proposed Rulemaking (ANPRM) is a relatively minor step in the rulemaking process. Nonetheless, the ANPRM for the lead standard has been controversial because of the range of policy options EPA is considering.

According to the ANPRM, EPA may tighten the standard to a level as low as 0.02 μg/m³ from the current level of 1.5 μg/m³. EPA is also considering maintaining the current standard, or eliminating the regulation for lead air quality altogether — an option EPA's own advisors say has no scientific basis.

EPA will take comments through Jan. 16 on any and all of its surprisingly broad range of policy options.

EPA's revision to the lead standard has been the subject of varying scientific interpretations.

Read the rest of this entry

Posted by Matt Madia, 11:20:35 AM

Friday, December 14, 2007

Update on Bond Amendment

As Reg•Watch blogged Tuesday, Sen. Kit Bond (R-MO) was pushing an amendment which would have forced agencies to analyze a rule's potential impact on "agricultural entities." Because of the way the amendment is written, this designation could apply to almost any business or even entire industries.

In addition to the analytical requirements, the amendment would force EPA and the Department of the Interior (two big environmental regulatory agencies) to convene special panels of agricultural industry representatives who would be allowed to review and edit rules before they are released to the public.

The Senate has finished debate on the bill and the amendment was never voted on. Thanks to those of you who contacted your senators and urged them to oppose the Bond amendment!

Posted by Matt Madia, 05:35:25 PM

Thursday, December 13, 2007

House Small Business to Consider Regulatory Analysis Bill

Thursday morning, the House Small Business Committee is scheduled to mark-up the Small Business Regulatory Improvement Act. The Act would amend the Regulatory Flexibility Act which requires agencies to perform a "regulatory flexibility analysis" on rules which are "likely to have a significant economic impact on a substantial number of small entities." (The term small entities primarily refers to small business, but may also refer to non-profit organizations or small governmental jurisdictions.) The Regulatory Flexibility Act also requires agencies to review such rules at least every 10 years.

The bill being considered by the Small Business Committee would create additional analytical burdens for agencies. The bill would do this by changing the definition of "economic impact." Under the bill, the definition would so broad as to encompass almost any agency rule. Because of that, agencies would have to expend valuable resources hunting down and attempting to guess at a proposal's potential impact on small entities.

OMB Watch, along with environmental groups, unions, and other good government groups, has written committee chairwoman Nydia Velasquez outlining the groups' concerns. Download it here.

Reg•Watch Update: "House Panel Moves Regulatory Analysis Bill"

Posted by Matt Madia, 09:16:14 AM

Tuesday, December 11, 2007

Bond Amendment Targets Enviro Regs; Tell Your Senators to Vote "No"

Sen. Kit Bond (R-MO) has introduced an amendment to the Farm, Nutrition and Bioenergy Act (H.R. 2419) which would add another analytical burden to the regulatory process. Bond's amendment would require federal agencies to perform additional impact analyses on any rules that may affect a "substantial number of agricultural entities." Because of the way the amendment is written, this designation could apply to almost any business or even entire industries.

For more information, see a factsheet OMB Watch has sent to all Senate members. Ultimately, the amendment could further slow the rulemaking process and give industry representatives yet another opportunity to alter public policy.

The Senate may consider Bond's amendment as early as this afternoon. Call your senators and tell them to oppose Bond amendment 3771. Senate office phone numbers: senate.gov/general/contact_information/senators_cfm.cfm

Update on the Bond Amendment

Posted by Matt Madia, 11:48:31 AM

Monday, December 10, 2007

Congressmen Press EPA on Transparency

Friday, Reps. John Dingell and Bart Stupak wrote to EPA administrator Stephen Johnson asking about the agency's transparency policies. The congressmen point out that previous EPA administrators have issued memos outlining proper transparency measures for agency activity but that Johnson has not.

Dingell and Stupak do not identify any specific points of opacity or examples of EPA cover-ups; but one issue piqued Reg•Watch's interest. In their final question to Johnson (to which they request responses by Dec. 17), the congressmen ask the following:

Administrators [Lee] Thomas and [William] Reilly also stated that "procedures have been established with OMB to ensure that such material received by OMB from outside parties will be placed in the EPA public record." What specific procedures are in place in this Administration to ensure that materials from outside parties received by OMB on EPA rules are placed in the EPA public record? Please provide a copy of any documents that describe these procedures.

For EPA's current revision to the national standard for ozone pollution, EPA's online docket does contain two letters sent to then-OMB Director Rob Portman from the Utah Manufacturers Association and the Mississippi Manufacturers Association. (Incidentally, both groups lobbied against a tighter standard, and the White House has worked to undermine scientific evidence in favor a stricter regulation.)

EPA is right to post such information. Laudably, EPA has also posted correspondence between OMB and agency officials. However, without knowing EPA's policy on transparency, we do not know whether the agency has posted all relevant information.

Reg•Watch will be interested to see if EPA is fully disclosing communications with OMB. Public access to these correspondences is important because, as we have seen all too often, OMB's Office of Information and Regulatory Affairs can influence or materially alter the policies of EPA and other agencies.

Posted by Matt Madia, 04:48:31 PM

Wednesday, December 05, 2007

The Flaws of Cost-Benefit Analysis: A Case Example

Reg•Watch often complains about the flaws of cost-benefit analysis and the overemphasis policy makers place on it as a tool in decision making. However, when discussing cost-benefit analysis in the abstract, it is difficult to show the practical problems associated with its use.

For a case example showing just how problematic cost-benefit analysis can be, read OMB Watch's new analysis, Polluted Logic: How EPA's ozone standard illustrates the flaws of cost-benefit analysis in regulatory decision making.

Polluted Logic tracks EPA's current revision of the national standard for ozone and shows how the use of cost-benefit analysis in the rulemaking has been useless to policy makers and has only complicated the debate over whether to tighten the standard.

As the paper discusses, EPA's ozone standard serves as a case example of some of the big problems with cost-benefit analysis in regulatory decision making:

Cost-benefit analysis is problematic for health, environment, civil rights, and safety rulemakings because of the magnitude of intangible and invaluable benefits;
Cost-benefit analysis often runs counter to congressional intent expressed in federal law; and
Cost-benefit analysis allows the White House Office of Information and Regulatory Affairs to manipulate regulations to serve an intended ideological agenda.

Download the paper here: Polluted Logic: How EPA's ozone standard illustrates the flaws of cost-benefit analysis in regulatory decision making.

Posted by Matt Madia, 12:45:02 PM

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