Time to Stand Up and Be Counted
Executive Order 12866 may be twenty years old, but formal, centralized review of agency rulemaking by the Office of Information and Regulatory Affairs (OIRA) is more than thirty years old, having been instituted by President Ronald Reagan in Executive Order 12291 in 1981. Since then, this centralized review has been carried out without significant change over five presidential administrations and has had bi-partisan support in both the House and Senate. Progressives have been less enamored with this review, seeing in it a deliberate bias against regulation by reason of its additional roadblocks to and delays in adopting regulations. This bias was clearly intentional in the origin of the centralized review by President Reagan, who famously said, “government is not the solution to our problem; government is the problem.” However, even when Democrats became President the bias remained. President Clinton’s E.O. 12866 begins with a statement of regulatory philosophy that agencies should adopt “only such regulations as are required by law . . . or are made necessary by compelling public need,” not regulations that simply further the public interest or increase the net welfare to society. President Obama not only retained E.O. 12866 but also, in his E.O. 13563 …
This coming Friday marks the 20th anniversary of a little-known but remarkably important document: Executive Order 12866, issued by President Bill Clinton in 1993. Executive Order 12866 replaced an order issued by President Ronald Reagan in 1981. Both of these documents set out a process whereby the White House – acting through the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) – would review major agency rules before they were issued.
Executive Order 12866, and the Reagan order before it, ushered in a new era in administrative law, one in which the White House would become the dominant force in administrative rulemaking and in which cost-benefit analysis would become the overarching framework for evaluating the wisdom of rules. Professional career staff in the agencies, steeped in the technical fields relevant to the agencies’ work, would see their work product changed, sometimes dramatically …
Today, the Hill published an op-ed by CPR Vice President Sid Shapiro entitled, "In Defense of Regulation."
According to the piece:
The responsible scholarly literature — as opposed to calculations cooked by business-friendly think tanks — has refuted the opponents’ claims of regulatory costs far in excess of the benefits of regulation. The same literature reminds us that not regulating also has costs — costs paid by the American public rather than by regulatory entities.
Consider the Environmental Protection Agency’s long-delayed revisions to air quality standards required by the 1990 Clean Air Act Amendments. If it succeeds, and if the anti-regulation forces in Congress don’t derail it, the rules are projected to save 237,000 lives by 2020. If the rules are delayed further or scuttled altogether, that’s the cost of inaction — actual lives lost due to air-pollution-related illness.
It concludes:
Then there’s climate change. We …
Last week, E&E News reported a breakdown in talks over EPA’s long- delayed stormwater rule. In 2009, in a settlement with the Chesapeake Bay Foundation, EPA promised a new rule by November, 2012. That deadline has long since passed, and apparently EPA and environmental groups are at an impasse in their negotiations over a new timeline.
The causes for the delay, which have been thoroughly covered here, are many, but all they boil down to a central problem: urban stormwater is hard to regulate, and EPA is struggling to figure out how to improve the existing system. There are several key reasons for those challenges.
First, urban stormwater problems generally arise from the combined runoff of very large numbers of properties. That makes an individual permitting approach, which has been quite successful for discharges of industrial and wastewater treatment plant effluent, hard to use; writing permits …
As we noted on the day of the announcement, OSHA has – at long last – released a proposal to better protect workers from respirable silica. We didn’t have much to say about the substance at the time because we simply hadn’t had the opportunity to read through the massive proposal. (It’s over 750 pages, with almost 1600 additional pages in the risk assessment and economic analysis documents – OSHA clearly doesn’t take their regulatory responsibilities lightly.) Having had a chance to get a bit more familiar with the proposal, here are some initial thoughts:
- A 50 µg/m3 permissible exposure limit (PEL) is necessary, but not sufficient. As with numerous other health standards OSHA has issued over the years, the agency has determined that reducing the PELs to their proposed level will reduce the risk posed by silica but will leave workers exposed to …
On September 20, 2013 the EPA proposed new source performance standards for greenhouse gas emissions for new power plants. Although the agency repackaged and fine-tuned an earlier proposal, issued in April 2012, it continues to hold the coal industry’s feet to the fire. The proposal makes clear that new coal-fired power capacity cannot be built without major reductions in carbon emissions. The agency’s new proposed rule continues to convey a critical message to utilities contemplating new energy-generation investments: utilities can no longer develop uncontrolled high-emission energy sources; future energy investments must either be lower-carbon or control carbon. The agency’s proposal provides clear parameters for future investments that set the nation on a more sustainable energy path.
This essay focuses on a critical difference between the September 2013 proposal and the earlier April 2012 proposal: how EPA has categorized electricity-generating units (EGUs). In this essay …
Almost every new power plant that the electric utility industry has built in recent years has been a natural gas powered plant. Industry rarely builds new coal-fired power plants anymore because gas has become much cheaper than coal. That is a very good thing. Absent rather expensive carbon capture and storage, new coal-fired power plants emit far more greenhouse gases than natural gas powered plants.
The new source standards promulgated today will tend to lock in the current status quo. They will likely impose no net cost on the economy, because natural gas has become cheaper than coal. Instead of generating electricity with the dirtiest fuel source, we will continue to rely more heavily on a somewhat cleaner fuel source. Given the effects of climate disruption one could argue that these standards do not go far enough. Climate disruption has likely caused heat waves, sea level rise …
This entire week, the coal industry and electric utilities have been decrying the EPA’s proposed rule, released today, limiting CO2 emissions from new coal-fired power plants. Experts predict the proposed rule will place limits on coal-fired power plants that will make them impossible to operate in the absence of carbon capture and sequestration (CCS) technology, which will significantly increase the cost of running existing plants and building new plants. These costs, as well as today’s low natural gas prices (and low wind prices in some areas), will transform coal from the low cost option for electricity generation in many parts of the country to a higher cost option. In the press, the coal industry and utilities contend that CCS technology is little more than a pipe dream. They argue that the rules will violate the Clean Air Act because CCS is not a commercially …
Yesterday, the Environmental Protection Agency (EPA) announced that it was “withdrawing” from White House review its draft final guidance that sought to clarify the scope of the Clean Water Act. The guidance had been languishing at the Office of Information and Regulatory Affairs (OIRA), which oversees the White House regulatory review process, for 575 days, even though Executive Order 12866, the document that governs OIRA review of regulations, caps the length of reviews at 90 days plus a limited, one-time extension of 30 days. This is just the latest episode in what now appears to be a new disturbing trend: The Obama Administration seems to be increasingly relying on a relatively uncommon practice known as a “withdrawal” to unceremoniously dispose of long-overdue OIRA reviews involving important safeguards that are vigorously opposed by industry.
Over the last few months, several other industry-opposed rules have met a similar fate …
In a much-anticipated opinion, a district court judge on Friday upheld the Bay TMDL, or pollution diet, against a challenge brought by the American Farm Bureau. The decision affirms that EPA’s Chesapeake Bay efforts have been squarely within its authority under the Clean Water Act (CWA), not to mention the various consent decrees, memoranda of understanding (MOU), and a presidential executive order.
The Chesapeake Bay Total Maximum Daily Load (TMDL) is a cap on the total amount of nitrogen, phosphorus, and sediment that can enter the Bay from the District of Columbia and the six Bay Watershed states: Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia. The plan is the largest and most complex of all such pollutant limits to date, and jurisdictions across the country are paying close attention to it because they consider it a possible model for efforts to clean up their …
