When President Obama launched his open government initiative on his first full day on the job, few assumed that the ambitious endeavor it contemplated would be easy.  After all, lack of transparency and even active efforts to conceal information had become almost an inextricable feature of the federal government’s internal operations and decision-making—especially during the George W. Bush Administration.  A recent series of developments confirms just how challenging the effort to achieve a more open government will be; fortunately, some of these developments also suggest that the Administration has learned some lessons from the initiatives’ early difficulties and perhaps is now moving in the right direction.

Obama launched the good ship “open government,” via a memorandum issued on January 21, laying out a vision of open government that was predicated on three pillars:  transparency; public participation; and collaboration.  The memo directed the Chief Technology Officer …

Last month, the Obama Administration urged Congress to resolve the uncertainty in the protection of the nation’s waters and wetlands under the Clean Water Act (CWA).  In a letter signed by the heads of several agencies, the Administration noted the confusion, delay, and even neglect in protecting the nation’s waters in the aftermath of two Supreme Court decisions: SWANCC and Rapanos.  Reports from the EPA and the EPA Inspector General have documented the impacts – 20 million acres of wetlands and isolated waters are no longer protected (subscription required).

At issue is the reach of the Clean Water Act, passed in 1972 with the lofty mandate of restoring the integrity of the nation’s waters and eliminating pollution by 1985.  Although the latter goal is still out of sight, significant progress has been made in restoring the quality of the nation’s water.  Under separate provisions …

In 2007, the FDA came under criticism for failing to inform the public about studies it had had for two years which indicated that users of the diabetes drug Avandia faced up to a 42% greater chance of suffering a heart attack.  More recently, it was revealed that Bush-era political appointees at the agency surreptitiously worked with chemical industry representatives to downplay evidence of the adverse health effects caused by bisphenol A (BPA), a chemical frequently used in making plastic toys and baby bottles.  Thanks to scandals like these, the FDA has long been dogged by criticisms for the lack of transparency with which it conducts regulation.

The Obama Administration says it will be taking on the issue.  The FDA announced Tuesday that it would be beginning a process to enhance “the transparency of the agency’s operations and decision-making process.”

To carry out this new initiative …

The Milwaukee Journal-Sentinel reported on Saturday, and the Washington Post on Sunday, about a meeting of industry groups in Washington last week to devise a plan to respond to criticisms of Bisphenol A (BPA).

From the Post:

Manufacturers of cans for beverages and foods and some of their biggest customers, including Coca-Cola, are trying to devise a public relations and lobbying strategy to block government bans of a controversial chemical used in the linings of metal cans and lids.

The Environmental Working Group has posted the full memo summarizing the meeting. The memo says that the commitee is focusing lobbying efforts on Connecticut and California, given pending legislation. And: "Their 'holy grail' spokesperson would be a 'pregnant young mother who would be willing to speak around the country about the benefits of BPA.' "

Serious health concerns ought to be treated as serious health concerns, not just a …

Cross-posted by permission from Legal Planet.

According to Science Insider (subscription required), NOAA Administrator Jane Lubchenco has endorsed broader use of a “catch shares” approach to allocating the available catch in commercial fisheries. The shares strategy (also referred to as “individual transferable quotas” or “limited access privileges”) gives individual participants in the fishery a permanent and transferable right to a set proportion of the total allowable catch.

In theory, assigning shares should contribute in several ways to a more sustainable fishery. By limiting entry, a shares strategy should help address the chronic problem of over-capitalization — too many boats chasing too few fish — which tends to ratchet up pressure for high catch levels. By giving the fishers a long-term stake in the health of the fishery, it should give them incentives to support sustainable (reduced) catch levels. In some fisheries, shares can also make fishing safer by removing …

Here's some slippery regulatory logic: West Virginia's Department of Environmental Protection says it is justified in setting less stringent levels for mercury in the state's waters than recommended by the U.S. Environmental Protection Agency. Why? Because, according to the WVDEP, a recent study shows that people in West Virginia eat less fish than the "average American" assumed by EPA. And if people consume less fish, they will be exposed to lower quantities of the toxic pollutants in those fish -- including methylmercury. But why might people in West Virginia eat less fish? One reason is likely the statewide fish consumption advisory warning people to limit their consumption of fish caught in all West Virginia waters, due to mercury contamination. But isn't the amount of mercury contamination permitted in the state's waters limited by the WVDEP? Well, yes. But any limitations on sources …

The Milwaukee Journal-Sentinel continued its impressive BPA reporting Sunday with disturbing revelations about former FDA political appointees’ utter disregard for the agency’s career scientists. Using the Freedom of Information Act, the Journal-Sentinel uncovered e-mails showing that high-level officials went to industry lobbyists for advice about new research on bisphenol A (BPA) before asking FDA career staff.

In one instance, the U.S. Food and Drug Administration's deputy director sought information from the BPA industry's chief lobbyist to discredit a Japanese study that found it caused miscarriages in workers who were exposed to it. This was before government scientists even had a chance to review the study.

"I'd like to get information together that our chemists could look at to determine if there are problems with that data in advance of possibly reviewing the study," Mitchell Cheeseman, deputy director of the FDA's center …

On Wednesday, by the stroke of a pen, President Obama reversed a major Bush administration policy, striking another blow for good government. For eight years the Bush administration sought to accomplish tort reform by stealth and indirection with several agencies proclaiming in preambles to regulations that the regulations preempted state tort law. These agencies included the National Highway Traffic Safety Administration, the Federal Railroad Administration, the Consumer Product Safety Commission, and most notably the Food and Drug Administration. The FDA's broadest claim -- that its drug labeling regulation preempted state tort law -- was rejected by the Supreme Court earlier this year in Wyeth v. Levine.

In a November 2008 White Paper, CPR Member Scholars called for the President to amend or strengthen the existing Executive Order on Federalism to reverse this Bush policy and to re-establish the presumption that federal regulations protecting health, safety, and the environment …