In late September, the EPA proposed regulation of new power plants’ greenhouse gas emissions (GHGs) under the Clean Air Act’s “New Source Performance Standards” (NSPS) provisions. Now an often little noticed follow-on provision—Section 111(d)--- is suddenly in the spotlight. Section 111(d) requires regulation of existing sources that are in categories of polluters subject to NSPS regulation. President Obama, EPA, industry, environmental groups, and states have all entered the fray about what Section 111(d) requires and allows. 

This issue presents several important choices and issues. First, regulation of existing US fossil fuel burning power plants—the source of over 30% of US carbon dioxide emissions-- is unavoidably central to US efforts to reduce GHG emissions. Second, in the face of the federal government’s long climate change inaction, many states and regions have already created programs and laws designed to reduce GHG pollution …

As it turns out, many of the same people who deny that climate change is a problem also deny that government default would be a problem.  No doubt there are several reasons: the fact that Barack Obama is on the opposite side of both issues; the general impermeability of ideologues to facts or expert opinion; a general suspicion of elite views.  But I’d like to suggest that there is also a deeper belief about the invulnerability of systems to outside shocks, either on the view that the system is very loosely linked or has a very strong tendency to return to equilibrium. These are actually a bit contradictory since strong corrective forces imply tight linkage, but most people don’t notice that.

For example, you might think that changing one atmospheric gas wouldn’t really have much impact on the world or that counteracting forces like …

Yesterday, the Hill published an op-ed by Center for Progressive Reform Scholar Joel A. Mintz entitled, "The Government Shutdown and the EPA: the Environmental Dangers of Congressional Recklessness."

It can be read in full here.

According to Mintz:

The indefinite close down of EPA’s operations poses major risks, some imminent and others long term, to the health and natural environment of millions of Americans.

The EPA’s enforcement of existing regulations provides vital protections against the emission of toxic air and water pollutants and the contamination of public drinking water supplies. The EPA works to prevent the exposure of school children to asbestos, the ingestion of toxic lead paint by infants, and the release of poisonous chemicals from long-abandoned hazardous waste dumps. The Agency also works to guard against the destruction of fish, shellfish and other aquatic life. In addition, the EPA supplies much-needed grant money …

Last Friday, Executive Order 12866, which governs the work of OMB's regulatory review arm, the Office of Information and Regulatory Affairs (OIRA) reached its 20th anniversary.

Center for Progressive Reform scholars marked the anniversary by examining the Order's reach and OIRA's influence on the regulatory process including on the issues of transparency, timeliness and the centralization of executive power.

Here's a roundup of their contributions: David Driesen: Keeping OIRA from Harming Efforts to Reduce Greenhouse Gases Emissions "As of this writing, more than six years have elapsed since the Supreme Court held that greenhouse gases were pollutants under the Clean Air Act, many of them under a President committed to addressing climate disruption. In all of that time, EPA has not imposed any limits on the greenhouse gas emissions of power plants or factories, thus making climate disruption irretrievably worse than it might …

Ever wonder how Professor Tom McGarity knows about all those delays in regulatory review? Or how Professor Lisa Heinzerling learns about food safety regulations that the White House appears to be burying?

A series of catastrophic regulatory failures have focused attention on the weakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The destructive convergence of funding shortfalls, political attacks, and outmoded legal authority have set the stage for ineffective enforcement, unsupervised industry self-regulation, and a slew of devastating and preventable catastrophes.  From the Deepwater Horizon spill in the Gulf of Mexico to the worst mining disaster in 40 years at the Upper Big Branch mine in West Virginia, the signs of regulatory dysfunction abound.  Many stakeholders expected that President Obama would move to reinvigorate the regulatory system, but he has not. In fact, he's gone so far as to adopt some anti-regulatory rhetoric, and suggesting that that alleged over-regulation contributes to the nation's economic woes.

One central reason for the systemic failure of effective health and safety regulation …

As indicated by the 20^th anniversary of Executive Order 12866, which guides the workings of the Office of Information and Regulatory Affairs (OIRA) at OMB, OIRA has become a fixture of the regulatory landscape.  OIRA review of proposed rules is problematic, as other blogs in this series have indicated.   In the Obama administration, however, this is an additional problem. Other offices in the White House, besides OIRA, are more deeply involved in making regulatory decisions than in any other previous administration. This deeper involvement has made it more likely that regulatory decisions will reflect political considerations rather than policy considerations.   When this happens, OIRA’s regulatory review under E.O. 12866 can become a fig leaf covering up for the political decisions that are being made.

There is an old saying that in government “where you stand depends on where you sit.” That is, your view …

This blog explains why President Obama should exempt proposals to mitigate climate disruption by reducing greenhouse gas emissions from OIRA review. First, the procedure that justifies OIRA review, cost-benefit analysis (CBA), just does not work for climate disruption measures. Second, CBA undermines just and legal climate policy. Third, climate disruption poses special risks that make the delay and weakening that comes from OIRA review unacceptable. 

Because of climate disruption's nature, prominent CBA proponents, such as Eric Posner and Martin Weitzman, have argued that CBA works badly for climate disruption. Weitzman emphasizes that climate disruption creates a risk of a catastrophe. Because the magnitude and likelihood of such a catastrophe remain unknown, CBA cannot include a reasonably reliable benefit estimate. Weitzman argues that this problem so dominates any rational response to climate disruption that conventional CBA becomes useless and highly misleading as a guide to climate policy …

On this 20^th anniversary of the regulatory review regime of Executive Order 12,866, the appropriate thing to do would be to take stock. Has centralized regulatory review, on balance, improved the quality of federal regulation or interfered with it?   Is this now-extensive regulatory review process worth it, given its costs? Sadly, the opaque quality of the process precludes a definitive answer.  

Readers familiar with regulatory review already know that Executive Order 12,866, issued by President Bill Clinton, significantly reaffirmed systematic, centralized White House review of agency rulemaking activity.  That Order built on the structure established in President Ronald Reagan’s 1981 Executive Order 12,291, both strengthening and modifying it in important ways.  And Reagan’s Executive Order in turn built substantially upon more tentative moves made by Presidents Nixon, Ford, and Carter.  EO 12,866 effectively settled three areas of bipartisan consensus (at …