Cross-posted from ACSblog.

A series of catastrophic regulatory failures in recent years has focused attention on the weakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The failures are the product of a destructive convergence of funding shortfalls, political attacks, and outmoded legal authority, setting the stage for ineffective enforcement and unsupervised industry self-regulation. From the Deepwater Horizon spill in the Gulf of Mexico that killed eleven and caused grave environmental and economic damage, to the worst mining disaster in 40 years at the Big Branch mine in West Virginia with a death toll of 29, the signs of regulatory dysfunction abound. Peanut paste tainted by salmonella, lead-paint-coated toys, sulfur-infused Chinese dry wall, oil refinery explosions, degraded pipes at U.S. nuclear power plants: At the bottom of each well-publicized event is an agency unable to do its job …

On Wednesday, former senator Evan Bayh joined former George W. Bush Chief of Staff Andy Card at the Chamber of Commerce to formally announce their plans to tour around the country campaigning against regulations. The pair have already jumped into a series of falsehoods, endorsing, for example, the discredited SBA-sponsored study claiming regulations cost $1.75 Trillion in a year.

Over at ThinkProgress, CPR Member Scholar Sidney Shapiro takes a closer look at the pair's claims:

Bayh and Card see regulators as having “unprecedented power” and call for “restoring balance and accountability in the process.” I don’t know what regulatory system they are viewing, but it bears no resemblance to the one operating currently in the United States. Far from having “unprecedented power,” agencies find it difficult to complete any type of controversial regulation in less than six to ten years because they must negotiate …

The EPA has developed an inexplicable penchant for making decisions that please no one. So, it should come as no surprise that its announcement today regarding the ongoing, will-they-won’t-they Boiler MACT saga falls into this category too. The agency traded in the indefinite delay it gave itself last month to “reconsider” the final Boiler MACT standards it issued in February for a firm deadline:  The EPA now promises to complete the reconsidered final standard by the end of April of 2012.

Environmentalists responded to the EPA’s earlier announcement that it would indefinitely delay the reconsidered final standard with equal parts anger and shock. (See here and here) To allow this indefinite delay, the agency exploited a loophole in the Administrative Procedure Act, crafting a one-sided “justice” analysis that considered only industry’s interests while completely ignoring those of the public and the environment.

It’s …

Fact: It often takes agencies up to 10 years (in some cases even longer) to develop and issue critical regulations needed to protect people and the environment. These delays may save corporations money, but they impose real and preventable costs in terms of lives lost, money wasted, and ecosystems destroyed.

The reasons for this delay are not hard to divine. Before it can issue a rule, agencies must run a highly complex gauntlet of analyses and reviews that have piled up thanks to several decades’ worth of misguided regulatory legislation, executive orders, and OMB memos, letters, and circulars. The result is a mishmash of unnecessary or duplicative analyses and reviews that do little to improve the quality of agency decision-making.

For their part, agencies are hardly in the position to play these games. Over the last few decades, agencies have become overstretched as their budgets and staff …

Imagine you are building a beach house somewhere on the Gulf Coast and that I had some information about future high tides that would help you build a smarter structure, avoid flood damage, and save money in the long-run. Would you want that information?

Not if you follow the reasoning of Representatives Steve Scalise of Louisiana or John Carter of Texas. Both are concerned about the Obama administration’s recent efforts to make federal programs stronger and more resilient in the face of climate change. Scalise sponsored an amendment (H.AMDT. 467 to H.R. 2112) that prevents the Department of Agriculture (USDA) from pursuing its plan to assess climate vulnerabilities in its programs. Carter did the same (H.AMDT. 378 to H.R. 2017) for the Department of Homeland Security (DHS). And this month the Republican-led House of Representatives, with little fanfare, passed both initiatives (Scalise …

Manic House Republicans voted last Thursday to de-fund the implementation of a landmark law, passed just a few months ago, to strengthen Food and Drug Administration’s (FDA) authority to police tainted food. Rep. Jack Kingston (R-Ga.), chairman of the House subcommittee that wrote the agriculture appropriations bill, announced on the House floor that the cuts were justified because the nation's food supply was “99.99 percent safe.” 

“Do we believe that McDonald's and Kentucky Fried Chicken and Safeway and Kraft Food and any brand name that you think of, that these people aren't concerned about food safety?,” Kingston said. “The food supply in America is very safe because the private sector self-polices, because they have the highest motivation. They don't want to be sued, they don't want to go broke.  They want their customers to be healthy and happy.”

Sadly for …

CPR Member Scholar Doug Kysar has a post over at Nature with more analysis on the Supreme Court's ruling this week in the American Electric Power v. Connecticut case. Writes Kysar:

The court went out of its way to emphasize that federal common-law actions would be barred, even if the EPA decides not to regulate greenhouse-gas emissions. In other words, the fact that the agency has authority under the Clean Air Act — even if it chooses not to exercise it — was enough, in the court's view, to cut the judiciary out of the equation, stating, "We see no room for a parallel track."

The problem with this is that the US system of limited and divided government is a web of interconnected nodes, not a row of parallel tracks. The courts should understand that part of judges' role is to prod and plea with other …

Cross-posted from Legal Planet.

The Supreme Court decided the AEP case.  The jurisdictional issues (standing and the political question doctrine) got punted.  The Court said that the lower court rulings were affirmed by an equally divided court.  So far as I know, this is the first time that the Court has ever done that and then proceeded to a ruling on the merits.  (It would seem more appropriate to dismiss cert. as improvidently granted rather than issue an opinion on the merits.) This is actually good news: it means that there were four Justices to reject the political question doctrine and find standing.  Since Justice Sotomayor did not participate but wrote the lower court opinion, we know that five Justices would vote accordingly in another case. Hence, it seems clear that lower courts should not apply the political question doctrine in these circumstances and that they should …

As part of its ongoing campaign to derail health, safety, and environmental regulations that it regards as inconvenient to industry, the Chamber of Commerce sent a letter earlier this month to Cass Sunstein, Administrator of the White Hosue Office of Information and Regulatory Affairs, calling on him to push the EPA to suspend an initiative to list BPA and several other substances as "Chemicals of Concern." Today three Member Scholars of the Center for Progressive Reform sent a letter to Sunstein, arguing that the Chamber had misread the law and calling on Sunstein to allow EPA to publish the proposed rule so that the public can comment on it.

EPA is considering listing BPA and four other chemicals using its authority under § 5(b)(4) of the Toxic Substances Control Act (TSCA). Each of the chemicals (or classes of chemicals)—BPA, Hexabromocyclododecane (HBCD), Nonylphenol (NP) and Nonylphenol …