Blog Posts of Matthew Madia

EPA to Put Environmental Justice on the Cost-Benefit Ledger

 

The U.S. Environmental Protection Agency (EPA) needs to better account for environmental justice when analyzing the costs and benefits of proposed regulations, experts said yesterday at an EPA symposium. BNA news service (subscription) reports:

Participants in a panel discussion on economic analysis frameworks suggested that EPA consider new methods that allow regulators to measure the broadest health impacts and compare those health benefits with those resulting from policies that protect the most vulnerable populations. […]

While cost-benefit analyses have traditionally focused on how efficiently a rule can provide health benefits, they do not often consider how equitably those benefits are distributed, panel moderator Kelly Maguire, an economist at EPA's National Center for Environmental Economics, said. 

Under the leadership of administrator Lisa Jackson, EPA has shown a renewed spirit for environmental justice, which EPA defines as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” Too many environmental hazards disproportionately impact low-income and minority communities.

I would be wary of attempts to assign a dollar figure to environmental justice impacts, but in principle I do believe it is important to more fully gauge the distribution of environmental regulations’ benefits – and, more importantly, the risks of not regulating – across all peoples and places. (Costs are already well counted.)

The strategy of accounting for environmental justice seems consistent with the cost-benefit analysis philosophy of Cass Sunstein, administrator of the White House Office of Information and Regulatory Affairs (OIRA). OIRA sets economic analysis guidelines for all regulatory agencies, and reviews the individual cost-benefit analysis accompanying significant proposed and final rules.

In a speech at the American University Washington College of Law last month, Sunstein spoke of the Obama administration’s cost-benefit strategy:

“We’ve tried to engage in cost-benefit analysis…in a way that is at least as rigorous as ever before, I hope more rigorous than ever before, but also in a way that is humanized in the sense that it takes account of qualitative and well as quantitative considerations – monetized values aren’t all that matter; it takes account of distributional considerations – are people in distress being helped or hurt?; and it takes account emphatically of the interests of future generations.” 

Again, while I fret over the rigor of cost-benefit analysis, Sunstein’s comments sound good in principle. Unfortunately, OIRA has not revised its cost-benefit guidelines to reflect this shift in priorities (I’d prefer they scrap all together the current guidelines written by Bush-era administrator John Graham). It is unclear whether agencies are better accounting for those benefits of regulation that cannot be “monetized” – things like lives saved, hardships avoided, cleaner skies and waters, good health, and other types of social gains that can be achieved through environmental justice.

EPA expects to issue this year its own guidelines for the consideration of environmental justice in rulemaking, according to BNA. OIRA ought to follow suit, overhauling cost-benefit guidance for all agencies in a way that ensures it is a helpful tool for decisionmakers, not a deregulatory wedge. A new, “humanized” approach, to borrow Sunstein’s term, could be reflected in new cost-benefit guidelines and/or in the new regulatory executive order President Obama promised last year.

(Matthew Madia 03/19/10; 0 comments)

White House Increasing Pressure over Invalid Rules

 

Federal rulemaking agencies continue to fail to submit new regulations to Congress, potentially invalidating them, according to the Government Accountability Office (GAO) and the Congressional Research Service (CRS).

stepsAccording to a December 2009 CRS report, in FY 2008, 28 federal agencies and cabinet departments failed to send copies of 101 final rules to GAO, the investigative arm of Congress. As of Oct. 26, 2009, 96 of the 101 rules still had not been submitted, raising questions about their legality. The problem was not limited to 2008; agencies have been forgetting to send rules to GAO since the late 1990’s.

Why is this step important? Typically, when agencies publish final rules in the Federal Register, they also identify a future date when the rule will take effect, often 30 or 60 days after the publication date. When the rule takes effect, it is considered to have the full force of law. However, the Congressional Review Act (CRA), passed in 1996, added another step that requires that final rules "shall be submitted to Congress before a rule can take effect." The act also requires submission to the Comptroller General, the head of GAO. (Click here for more.)

According to a new CRS report, 31 rules were not submitted to GAO during FY 2009. In January, GAO contacted the White House Office of Information and Regulatory Affairs (OIRA) to alert officials of the 31 missing rules, according to CRS. Since then, 26 of the 31 have been submitted to GAO, eliminating any possible legal questions about their validity.

While it is obvious a problem still exists, evidence indicates progress is being made to bring agencies into full compliance with the CRA’s submission requirement. Agencies’ failure to send 31 rules in FY 2009 appears exemplary when compared to the 101 missing rules from FY 2008.

OIRA may deserve credit here. After many years of dodging responsibility for this issue, OIRA is now more regularly communicating with agencies about the CRA submission issue. BNA news service (subscription) reports:

OIRA officials told CRS that after receiving GAO's January 2010 letter, the deputy administrator of OIRA sent an e-mail to federal agencies that reminded them of their obligation to submit their rules to GAO and Congress, and provided another copy of OMB's 1999 guidance on the Congressional Review Act.

They also said that OIRA planned to send similar e-mails twice each year to agency regulatory officials, and planned to give GAO a list of those agency officials so that GAO could resolve any concerns about unsubmitted rules more quickly, the CRS report stated. Finally, OIRA officials said they planned to raise the issue of compliance with the CRA at meetings of the regulatory working group, the report stated. 

Image courtesy of Flickr user So gesehen, used under a Creative Commons license.

(Matthew Madia 03/18/10; 0 comments)

Rulemaking and the Open Government Agenda

 

It’s Sunshine Week, which means it’s as good a time as any to talk about rulemaking transparency.

When it comes to regulations, interested parties want to see more than just the text of the rule and the published notice explaining the rule (a.k.a. the preamble); they want to see information on why the agency made the decisions it made.

Disclosure of decisionmaking materials allows the public to hold agencies accountable. If an agency says it is relying on a particular scientific study, the public needs access to that study to make sure the agencies’ conclusion matches the science. If an agency’s decision is intended to reflect the policy priorities of the agency head or the president, documents or communications of those priorities need to be made available.

Currently, federal agencies are developing open government plans in response to the White House’s Open Government Directive. Agencies are accepting ideas for their plans through the end of the week. The plans are due April 7.

OMB Watch is urging a number of agencies to disclose more information in their rulemaking dockets. Among other items, agencies should disclose:

  • Any study, research, or other input used during the rulemaking, regardless of whether the information ultimately informed the decisionmaking;
  • All written communications among federal offices and agencies, including the White House Office of Management and Budget;
  • All substantive communications, both written and oral, between the agency and an outside party pertaining to the rulemaking.

(These recommendations are based in part on a report written by OMB Watch Executive Director Gary Bass and other regulatory experts titled Advancing the Public Interest through Regulatory Reform.) 

Not only should agencies disclose more information about their rulemakings, they should make sure that information is more widely available. The easiest way to do this is to make information available online.

Currently, agencies maintain rulemaking dockets in hard copy (the official version) and online at Regulations.gov, the centralized portal for finding, viewing, and commenting on regulations. But the paper docket and the online docket do not necessarily match. Different agencies disclose different types of information through Regulations.gov, and some agencies choose only to post the bare minimum. If the two dockets are not identical, users of the online dockets cannot be confident that they are getting the full story.

You can participate in the development of agencies’ open government plans for the rest of the week. Here are the links to the participation and voting platforms for select agencies with strong rulemaking programs:

(Matthew Madia 03/17/10; 0 comments)

Vehicle Greenhouse Gas Rule Sent to White House for Final Review

 

The Obama administration is nearing completion of a major federal regulation of greenhouse gas emissions for the first time in U.S. history. The Environmental Protection Agency and Department of Transportation will jointly issue a rule regulating vehicle emissions by mandating increases in fuel efficiency over the coming years.

Tuesday, EPA and DOT’s National Highway Traffic Safety Administration submitted a draft final rule for review by the White House Office of Information and Regulatory Affairs (OIRA), the last step in the rulemaking process before publication. The rule must be published by April 1 in order to give automakers enough time to comply with the rule’s requirements for model year 2012 vehicles.

In the proposed rule, EPA estimated the standards would reduce climate changing greenhouse gas emissions by 950 million metric tons and 1.8 billion barrels of oil for cars sold in the model years covered (2012-2016).

The environmental gains aren’t the only benefits worth noting; drivers’ budgets will benefit too. Under the proposed rule, DOT estimated fuel cost savings of more than $150 billion.

The joint rules have the support of both environmentalists and the auto industry who came to an agreement in May 2009. Environmentalists persuaded the administration to use California’s vehicle emissions program, which had never been implemented, as a model for the federal regulations. Even though automakers had objected to the California plan, they signed on because they wanted one standard applied to all 50 states.

(Matthew Madia 03/11/10; 0 comments)

What Happened to Obama’s Commitment to Scientific Integrity?

 

Today, March 9, is the one-year anniversary of President Obama’s scientific integrity memo which instructed his staff to produce within 120 days recommendations for ensuring independence of federal scientists and limiting political interference in their work. 365 days later, we’re still waiting.

expect delays The Union of Concerned Scientists is critical of the delay. Francesca Grifo, director of UCS’s scientific integrity program, had this to say:

While the new administration has been generally supportive of scientific integrity values, it's moving too slowly to establish badly needed reforms. The current system still discourages scientists from communicating about their research results, for example. It still keeps the public in the dark about the scientific basis for policy decisions, and it still rewards staffers who keep quiet about political interference in science. 

The criteria Obama laid out in his March 9, 2009, memo are admirable: hiring and keeping qualified scientists; defining new policies to ensure integrity; using “well-established scientific processes” like peer review; disclosing scientific findings; ensuring that scientific integrity principles are being adhered to; and adopting additional policies like whistleblower protections.

But by failing to follow up with a concrete set of reforms, Obama and John Holdren – the Director of the Office of Science and Technology Policy who was tasked with developing recommendations – are sending a terrible message to those who believe scientific integrity ought to be a priority for this administration.

Interference in science reached new heights under President George W. Bush; but just because Bush is gone does not mean the problems go away too. As OMB Watch discusses in the latest issue of our e-newsletter The Watcher, a new report from the Project on Scientific Knowledge and Public Policy (SKAPP) proves that much work remains. SKAPP interviewed federal scientists during both the Bush and Obama administrations, and found that although there were a few bright spots in scientists' views of the changes that had occurred, a majority felt similar frustrations.

Couple this delay with the now year-plus delay on Obama’s effort to improve the regulatory process by writing a new executive order, and my outlook on the administration’s commitment to government reform is dimming.

Photo by Flickr user davidfntau. Used under a Creative Commons license.

(Matthew Madia 03/09/10; 0 comments)

ACUS Chairman Confirmed

 

On March 3, the Senate confirmed Paul Verkuil to serve as chairman of the Administrative Conference of the United States (ACUS). The confirmation was approved by unanimous consent. The term for ACUS chairman lasts five years.

Most recently, Verkuil worked for the law firm Boies, Schiller & Flexner LLP. Click here for a bio.

ACUS was created in 1968 as an independent agency with a small staff assisted by outside experts in administrative law, government processes, judicial review and enforcement, and agency regulatory processes. The conference had a reputation for producing high-quality, independent, nonpartisan analysis and is credited with issuing more than 200 recommendations, many of which were implemented, as well as a variety of reports and studies on how to improve government. ACUS advocates say that the reforms ACUS recommends save the government more money than it takes to fund the agency (usually only a few million dollars). ACUS was dismantled in 1995 as part of Newt Gingrich’s contract with America.

ACUS was resurrected in 2008, but, without a new leader, it has been unable to get to work. President Bush did not nominate anyone to lead ACUS, and President Obama did not nominate Verkuil until Nov. 3, 2009.

Now, it looks like ACUS can finally get on its feet. The agency has a $1.5 million budget for the remainder of FY 2010, which goes until Sept. 30, 2010. However, any leftover funds may be used in FY 2011.

I think it’s important that ACUS begin working before Congress starts voting on FY 2011 spending bills, otherwise, it may risk losing funding next year. (At the very least, ACUS could launch a website, even a primitive one, quickly and cheaply.) In a year when politicians will be apt to seize upon any reason to make it appear as though they are cutting spending, it’s critical that ACUS have something tangible to show appropriators.

(Matthew Madia 03/09/10; 0 comments)

On Food Additive Safety, FDA Just Watches the GRAS Grow

 

A February Government Accountability Office report released today chides the Food and Drug Administration for failing to ensure the safety of common food additives. By law, manufacturers may assign additives a "generally recognized as safe," or GRAS, designation, a process that the FDA neither monitors nor verifies in most cases, according to the GAO.

MSGCompanies are supposed to make GRAS determinations based on the latest and greatest scientific evidence. Later, if new information turns up or if citizen petitions are filed with the FDA, additives can potentially be stripped of their GRAS designation.

One would expect that the FDA would keep tabs on GRAS substances. One would be wrong. Perversely, companies are not required to tell the FDA they have made a GRAS determination. (Many do notify the FDA voluntarily.) This makes it kind of difficult for the FDA to ensure food safety, according to GAO:

Once a GRAS substance has entered the marketplace, FDA would find it difficult to identify that substance as the potential source of a food safety problem, especially if FDA is unaware that the substance has been determined to be GRAS. Food products may contain numerous ingredients, including GRAS substances, making it difficult, if not impossible, for public health authorities to attribute a food safety problem to a specific GRAS substance. [Emphasis added.]

The report has many other specific criticisms of the FDA. It seems as though there are two overarching problems. First, regardless of whether the agency is aware that a GRAS determination has been made, the FDA tends to sit back and wait for new information to come to it. Second, when risk information does find its way to the FDA, the agency is slow to respond.

The report also delves into the issue of nanomaterials – tiny devices and products constructed of materials 100,000 times smaller than the width of a human hair. Although the FDA acknowledges that much remains unknown about nanomaterials (FDA has said it is not even comfortable defining nanotechnology), and even though some fear nanomaterials may have adverse effects on public health and the environment, manufacturers may designate nanomaterials as GRAS food additives. “Nevertheless, the decision to notify FDA of a GRAS substance, even one that contains engineered nanomaterials, is still voluntary,” the report says.

The GRAS problem is typical of the U.S.’s shoot-first-ask-questions-later approach to regulating. Safety is presumed, and regulation can only occur after evidence to the contrary reaches a critical mass.

GAO concluded the report by recommending several ways the FDA can sharpen oversight of GRAS determinations, including mandatory notification. “FDA generally agreed with the report’s findings and recommendations,” GAO said.

Image by Flickr user PunkJr, used under a Creative Commons license.

(Matthew Madia 03/05/10; 2 comments)

Senate Bill Threatens Greenhouse Gas Limits

 

Congress’s push to kneecap greenhouse gas regulation got a little stronger today when Sen. John Rockefeller (D- coal WV) introduced a bill that would delay for two additional years any EPA regulation of stationary sources like power plants and oil refineries.

The Washington Post’s Juliet Eilperin reports some of Rockefeller’s quotes, not worth repeating here, and points out that the bill is “one of several recent congressional efforts to curb the EPA's authority to address climate change under the Clean Air Act.”

Rockefeller’s move comes one day after EPA Administrator Lisa Jackson announced that she plans to modify the agency’s 2009 proposal for stationary sources in order to sweep in fewer facilities. “At [a Senate subcommittee] appropriations hearing, Jackson said state regulatory agencies have informed EPA that the 25,000-ton threshold would affect too many small sources not currently subject to Clean Air Act requirements,” according to BNA news service (subscription). Jackson said EPA will likely raise the threshold to 75,000.

So while EPA is trying to be flexible, the Senate continues to play games. Sen. Lisa Murkowski (R- oil AK) is sponsoring a resolution of disapproval for EPA’s endangerment finding. The endangerment finding is not regulation in and of itself. It is a formal statement that says, based on scientific study, greenhouse gases pose a threat to human health, welfare, and the environment. If the resolution of disapproval becomes law (which it won’t), EPA would be prohibited from making any similar findings, now and in the future. An identical resolution has been introduced in the House.

Rockefeller’s bill isn’t quite as bad as Murkowski’s resolution. The Rockefeller bill would only stall regulation for two years, whereas Murkowski’s measure could kill regulation outright. Also, the Rockefeller bill only takes aim at stationary sources; it would still allow EPA to regulate tailpipes. Perhaps most importantly, Rockefeller’s bill targets an EPA policy decision – the decision to regulate stationary sources at a certain threshold. It does not subvert the underlying science that serves as the foundation for climate change policy and debate, as Murkowski's resolution of disapproval does.

Of course, the easiest way for Sens. Rockefeller and Murkowsi and their colleagues to take the bite out of EPA regulation would be to pass comprehensive climate change legislation, à la cap and trade. But why waste time writing real, substantive legislation when you can just slap your name on the legislative equivalent of the National Enquirer…

(Matthew Madia 03/04/10; 0 comments)

With Clean Water in Jeopardy, Time for Congress to Take a Stand

 

An article in yesterday’s New York Times details how the Supreme Court has shafted the American people when it comes to water quality. Because of two cases, “About 117 million Americans get their drinking water from sources fed by waters that are vulnerable to exclusion from the Clean Water Act, according to E.P.A. reports.”

The problem stems from the definition of the word “navigable,” the operative word in the Clean Water Act that describes the kinds of waters the EPA may regulate. In two cases, Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers and Rapanos v. United States, the court limited the definition of “navigable waters” to preclude certain wetlands, seasonal streams, and isolated bodies of water, regardless of public exposure to these waters.

We’ve known for some time that the cases, one decided in 2001 and one decided in 2006, injected ambiguity into EPA’s interpretation of the act, but the Times’ article sheds additional light onto the breadth and impact the uncertainty has had on enforcement efforts:

More than 200 oil spill cases were delayed as of 2008, according to a memorandum written by an E.P.A. official and collected by Congressional investigators. And even as the number of facilities violating the Clean Water Act has steadily increased each year, E.P.A. judicial actions against major polluters have fallen by almost half since the Supreme Court rulings, according to an analysis of E.P.A. data by The New York Times. [emphasis added] 

Sen. Russ Feingold (D-WI) introduced last year the Clean Water Restoration Act to restore EPA’s authority. Basically, the bill would delete the word “navigable” from the original Clean Water Act. But in the United States Congress, successful passage of common sense legislation is a long shot. Similar bills were introduced in both the House and the Senate in 2002, 2003, 2005, and 2007. Feingold’s latest iteration is the first one in either chamber to pass the committee stage.

A member of an industry coalition opposing the act had this to say:

“If you can get Glenn Beck to say that government storm troopers are going to invade your property, farmers in the Midwest will light up their congressmen’s switchboards.” […] Mr. Beck, a conservative commentator on Fox News, spoke at length against the Clean Water Restoration Act in December. 

The right to clean water is a concept most of America has been on board with since at least the 1970s. Preventing dumping in wetlands, which in turn keeps pollution out of rivers and drinking water supplies, seems like a no-brainer. But when government has a chance to play a positive role in society, Beck, certain industry groups, some lawmakers, and the rest of the anti-government machine say “No!” – even to the no-brainers. Unfortunately, congressional Democrats, with their sizeable majorities, are perfectly willing to acquiesce.

(Matthew Madia 03/02/10; 0 comments)

Food Safety’s Bipartisan Flavor Can Spice up Government’s Image

 

All the pieces are in place for Senate passage of major food safety legislation that would give the Food and Drug Administration new powers to police both home grown and imported foods. “[I]t is urgent that that FDA food safety legislation, which could improve the safety of 80 percent of the food supply, not get pushed behind other pressing issues that are less likely to garner bipartisan support,” Caroline Smith DeWaal, food safety director for the Center for Science in the Public Interest, writes in an op-ed for The Hill.

The bill, the FDA Food Safety Modernization Act (S. 510), developed in a bipartisan environment, DeWaal writes:

Amid the rancorous partisanship that has marked the past year in the nation’s capital, a bipartisan effort to pass food safety legislation has been quietly taking shape. While the healthcare negotiations have broken down, restarted, and now seem to be in limbo, efforts quiet but sure to upgrade the Food and Drug Administration’s food safety mandate are progressing steadily. The last push for Senate action is near. And that effort is evidence that Washington can sometimes work, albeit slowly. 

Seven of the bill’s 15 cosponsors are Republicans, DeWaal notes. A similar bill enjoyed bipartisan support in the House where it passed last July, 283 to 142.

I’m less than sanguine about quick passage in the Senate – a body that seems to revel in slackery and incompetence. The food safety bill has been good to go since November when it passed the Senate health committee. What’s a bipartisan bill have to do to get some floor action in this town?

Nonetheless, the bill should remain a high priority for two reasons, as DeWaal argues. First, the bill would improve the safety of the food supply by allowing the agency to order mandatory recalls of tainted food products (a power it does not currently possess) and implement a program to collect fees from certain food facilities to fund increased safety inspections, among other provisions. Second, it would serve as evidence that government works to protect the public (and that government works period).

The latter is no small achievement. According to a recent CNN poll, 83 percent of Americans think our government is broken. According to a different poll, a majority of Americans think government has grown so large that “it poses an immediate threat to the rights and freedoms of ordinary citizens.”

Ensuring the safety and integrity of the food supply is an example of government intervention that aids, not threatens. Considering voter frustration with government’s role in society – which I believe stems in large part from the political morass that has bogged down health care reform and economic stimulus – now is an opportune time to highlight what government can do well.

(Matthew Madia 02/26/10; 0 comments)