On Regulatory Reform, It's Now Warren vs. Sunstein
Several weeks ago, Sen. Elizabeth Warren delivered perhaps the most important speech on the U.S. regulatory system in recent memory at a forum on regulatory capture organized by the Administrative Conference of the United States. In it, she described how the regulatory system was not working for the people as it should be – or as Congress had intended. Instead, she described how corporate influence over the regulatory process has become so far-reaching and so overwhelming that it has become fundamentally "tilted" to generate results that favor corporate profit at the expense of crucial safeguards necessary for protecting people and the environment.
Put differently, Warren's speech described how corporate interests had gone beyond capturing discrete agencies – a phenomenon that policymakers and political scientists have recognized for decades – and now have successfully captured critical components of the process by which agencies do their work.
This new approach to regulatory capture produces the same results as the traditional conception: substantive policies that advance industry interests at the expense of the public interest. In contrast, though, it is much more insidious – indeed, process capture is nearly impossible for policymakers to observe, let alone for the general public – and it is much more …
Eric Panicco, a candidate for Master of Arts in Sustainability at Wake Forest University, is undertaking an independent study for CPR Member Scholar Sidney Shapiro.
On August 3 of last year, the Environmental Protection Agency (EPA) released the Clean Power Plan. It was a historic moment for President Obama, one he commemorated by observing, "We're the first generation to feel climate change, and the last one that can do something about it."
Should it survive the inevitable court challenge launched within days of its release, the Clean Power Plan would reduce greenhouse gas emissions (GHGs) as an important part of a strategy to mitigate the effects of climate change. However, because of the GHGs that humans have already released, we will have to address the effects of climate change that are already well underway. Mitigation efforts such as the Clean Power Plan are important to keep …
Center for Progressive Reform President Robert Verchick has an op-ed in The New Orleans Advocate this morning about Gulf Coast efforts to prepare for the effects of climate change that we’re too late to prevent. A New Orleans resident himself, Verchick and his family suffered through Katrina, so he knows what he’s talking about when he says that the Gulf Coast is “staring down the barrel of climate change.”
He writes that in addition to large-scale infrastructure projects like fortifying levees, replenishing sand dunes, and reviving coastal wetlands, the region will need to turn to a number of “nonstructural” adaptation approaches. “Such measures,” he writes, “include elevating homes and other flood-proofing measures, as well as voluntary buy-out programs for specific properties at particular risk. In addition, planners need to examine building codes to make sure new construction is safe from flooding.”
He continues,
Another key …
How Justice Scalia's Last Canon Is Unhinging Statutory Interpretation
Justice Antonin Scalia was, as much as anything else, known for insisting that the text of a statute alone – not its purposes, not its legislative history – should serve as the basis for the courts' interpretation of the statute. Justice Scalia promoted canons of statutory construction – or at least what he deemed the valid ones – as a way of limiting the power of judges by setting rules for their interpretation of statutes. Yet he also warned, in a 1997 book, against "presumptions and rules of construction that load the dice for or against a particular result." He worried that such "dice-loading" rules might effect "a sheer judicial power-grab."
It is striking, therefore, that in one of his last majority opinions for the Supreme Court, Justice Scalia went out of his way to create such an interpretive rule. Writing …
NEWS RELEASE: New Paper Showcases Best Practices for Protecting, Empowering Vulnerable Gulf Coast Communities in the Face of Climate Change
Most Americans understand the importance of curbing greenhouse gas emissions to prevent a climate catastrophe in the future. But many communities are already feeling the effects of our warming planet. Impacts on the Gulf Coast are particularly challenging. In a new paper released today, the Center for Progressive Reform (CPR) highlights recommendations and best practices for protecting and empowering vulnerable communities as they adapt to climate change. The release comes ahead of an April 15 forum in New Orleans on risk reduction strategies for Louisiana coastal areas.
The paper, Climate Change, Resilience, and Fairness: How Nonstructural Adaptation Can Protect and Empower Socially Vulnerable Communities on the Gulf Coast, explains that many communities in the region are intimately tied to the area's environment and rich natural resources …
Last month, the California Air Resources Board released a draft Aliso Canyon Methane Leak Climate Impacts Mitigation Program. The program comes in response to Gov. Jerry Brown’s January 6 proclamation that Southern California Gas be held responsible for mitigating the estimated 100,000 tons of methane released from the gas storage facility at Porter Ranch, which leaked the equivalent of about one-fifth of all other California sources of the powerful greenhouse gas combined over that same period. While this high-profile case is unique in both its global and local impacts, the response by California may nevertheless be illustrative of certain broader environmental enforcement trends.
Legal scholars from the Center for Progressive Reform and elsewhere have written about a recent policy shift in the federal approach to enforcement, which the U.S. Environmental Protection Agency (EPA) calls “Next Generation Compliance.” Spurred by damaging cuts to the agency …
On April 6, U.S. District Court Judge Irene Berger sentenced former Massey Energy CEO Don Blankenship to one year in jail and a $250,000 fine for conspiring to violate federal health and safety standards at the Upper Big Branch Mine in West Virginia. The mine exploded and killed 29 miners in April 2010.
In an April 7 New York Times op-ed, CPR Member Scholar Rena Steinzor, Professor of Law at the University of Maryland Francis King Carey School of Law, explained the significance of Blankenship's conviction and sentence and what it portends for other top managers and CEOs:
"The first C.E.O. ever to be convicted of conspiring to violate industrial safety standards will soon take his place in prison.
"The sentence is noteworthy, however, not because of the law, but in spite of it. The Mine Safety and Health Act, the statute …
Over the last few years, deregulatory advocates have pursued a well-trodden path for advancing their anti-safeguard agenda: Publish a large, glossy "study," replete with impressive mathiness, that purports to measure the impacts of regulation but in fact provides a highly skewed portrayal by consciously ignoring the many benefits that regulations provide. (For example, see here, here, and here.) Last week, the libertarian Mercatus Center did the latest trodding when it released a study that ranked all 50 states (and the District of Columbia) according to how "affected" they are by federal regulation. The usual gloss and mathiness were on full display, but as always, an indispensable guest was left off the invite list: regulatory benefits.
So, how does the Mercatus Center come up with its rankings? It starts with its RegData dataset, which claims to measure total regulatory impact on the economy by – no joke – counting up …
Originally published on OUPblog by CPR Member Scholars Christine A. Klein and Sandra B. Zellmer.
The recent tragedy involving toxic, lead-laced tap water in Flint, Michigan highlights the growing gulf between rich and poor, and majority and minority communities. In an ill-fated measure to save costs for the struggling city of Flint, officials stopped using Detroit's water supply system and switched to the Flint River. Although residents complained about the water's foul taste, odor, and color, officials assured them that the water was safe to drink. Later, it became clear that the polluted, corrosive river water leached lead from the city's water pipes, so that the water coming out of the residents' taps contained high levels of lead – a powerful neurotoxin for which there is no safe level of exposure. Children are particularly vulnerable to lead poisoning, which causes severe learning disabilities and irreversible …
Today, U.S. District Court Judge Irene Berger sentenced former Massey Energy CEO Don Blankenship for conspiring to violate federal health and safety standards at the Upper Big Branch Mine in West Virginia. Upper Big Branch exploded and killed 29 miners in April 2010. CPR Member Scholar Rena Steinzor, Professor of Law at the University of Maryland Francis King Carey School of Law, issued the following statement:
"Although Mr. Blankenship won't spend much time in jail, an outcome determined by a disgracefully weak law rather than the case against him, at least he will go down in the record books as the first CEO convicted and imprisoned for causing the death of his workers because he disdained the law. This case should send a shiver down the spine of every top manager who follows the approach described by one witness: 'Run, run, run until we get …
