Sept. 6, 2011 by Thomas McGarity

Lisa Jackson Should Promulgate the Ozone Standard or Resign

Last Friday, President Obama ordered EPA Administrator Lisa Jackson to withdraw EPA’s new ambient air quality standard for ground level ozone (smog). The order came in a letter from Cass Sunstein, the head of the Office of Information and Regulatory Affairs in the Office of Management and Budget. 

The order does not pretend to be based on science. Indeed, it flies in the face of the available science on the human health effects of ozone as determined on at least two occasions by EPA’s Clean Air Scientific Advisory Committee (CASAC). The White House acknowledges – even touts – that the order is based on economic considerations (President Obama wrote in a statement Friday that “I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time.”) But the Supreme Court, in a unanimous decision written by Justice Antonin Scalia, held that costs are not to be considered in setting ambient air quality standards.

If Administrator Lisa Jackson obeys the order, her action may not strictly …

July 13, 2011 by Thomas McGarity

On Monday, the White House announced that President Obama had signed a new executive order on federal regulation to supplement January’s executive order to executive branch regulatory agencies. The new executive order is aimed at the “independent agencies,” so named because the heads of those agencies do not serve at the pleasure of the president. By statute, they serve for a term of years and can be removed from office only “for cause,” which usually means misbehavior unrelated to the exercise of the agency’s policymaking functions. 

The new executive order urges the independent agencies to use cost-benefit analysis in promulgating new regulations, to adopt “flexible” approaches to regulation, and to engage in retrospective analyses of existing regulations with an eye toward modifying or withdrawing regulations that are “outmoded, ineffective, insufficient, or excessively burdensome.”

As Professor Rena Steinzor argued in this blog in January, the original …

May 19, 2011 by Thomas McGarity

The report issued this morning by the Governor's Independent Investigation Panel on the West Virginia mine explosion that killed 29 miners at the Massey Energy Company’s Upper Big Branch Mine just over a year ago will never make the New York Times best seller list. But it should be required reading for all policymakers with responsibility for protecting the safety of the workers who spend much of their lives deep underground digging coal.

Although the Mine Safety and Health Administration (MSHA) and Massey Energy have conducted their own investigations (MSHA's is forthcoming) into the causes of the tragic explosion, Joe Manchin, then the Governor, correctly assumed that the full story was not likely to come out of two entities with such an obvious stake in the outcome. He asked Davitt McAteer, the head of MSHA during the Clinton Administration and a long-time advocate of …

Feb. 14, 2011 by Thomas McGarity

On March 23, 2005, the worst industrial accident in 15 years killed 15 workers and injured more than 180 others as highly flammable liquids from a distillation tower were vented directly to the ground and were ignited by a spark at the huge BP Corporation Refinery in Texas City, Texas. A two-year investigation by the Chemical Safety and Hazard Investigation Board (CSHIB) concluded that the BP Texas City refinery was “an extremely dangerous workplace by any objective standard.” An “Independent Review Panel” that BP assembled to investigate the explosion and BP’s safety practices throughout all of its operations issued a similarly devastating critique. 

The CSHIB also found that the Occupational Safety and Health Administration (OSHA) had acted irresponsibly. The facility was subject to OSHA’s 1992 process safety management standard, but plant managers had failed to implement many of its requirements.  The standard itself was out …

July 28, 2010 by Thomas McGarity

Now that Congress has passed legislation creating a new Consumer Financial Protection Bureau in the Treasury Department, attention has shifted to how the Obama Administration will implement the new law.

The issue of who President Obama should appoint to head the new agency is now front and center. Consumer groups and many members of Congress believe that Professor Elizabeth Warren, who came up with the idea for a consumer protection agency for the financial sector and has been an aggressive consumer advocate during the entire financial crisis, should be the President’s choice. The banking industry’s position is “anyone but Warren.”

Elizabeth Warren (who was my colleague at the University of Texas for many years) is the most qualified candidate. Although she would inevitably have to make compromises in launching the new agency, she is a charismatic leader who would remain a strong consumer advocate and …

Jan. 25, 2010 by Thomas McGarity

Cross-posted from ACSblog.

The citizens of Minot, North Dakota suffered a grave injustice on January 18, 2002 when a train derailment bathed much of that small town in a toxic cloud of poisonous gas that killed one person and injured almost 1,500 others. A detailed investigation by the National Transportation Safety Board concluded that the derailment was most likely caused by fractures in temporary joints that the railroad had installed to repair the track.

When the victims sued the railroad for damages caused by its negligent maintenance, they found the courthouse doors locked. A federal district court held that their claims were preempted by the Federal Railroad Safety Act (FRSA) of 1970, which contained a "preemption" clause that Congress enacted to prevent states and localities from enacting regulations that were inconsistent with the regulations issued by the Federal Railroad Administration (FRA), the federal agency that Congress …

Oct. 13, 2009 by Thomas McGarity

The debate over whether Congress should create a Consumer Financial Protection Agency, as recommended by President Obama, has recently taken a disturbing turn. Apparently, some congressional Democrats have been receptive to complaints from the big national banks that the current bill does not preempt state laws and regulations that are more stringent than the regulations that the new agency will promulgate.

National banks have traditionally been protected from state regulation by virtue of express preemption clauses in the federal statutes under which federal agencies like the Office of the Comptroller of the Currency provide their charters. This has arguably been a disaster for consumers. For example, when New York Attorney General Andrew Cuomo launched an investigation into discriminatory banking practices, the federal agencies literally cut off the investigation in mid-stride by filing a lawsuit in federal court for injunctive relief, and the Supreme Court agreed with the …

Sept. 9, 2009 by Thomas McGarity

Yesterday, the Food and Drug Administration implemented a 2007 food safety statute by promulgating a rule requiring food manufacturers to report instances of foodborne diseases to an electronic database that the agency has just established (the Reportable Food Registry). This long-awaited database will help epidemiologists at the Centers for Disease Control, state health agencies and academia identify "clusters" of illnesses that should contribute to a better assessment of the extent and magnitude of the foodborne disease problem in this country.

More important, the new database may assist epidemiologists in pinpointing the food items that have caused particular outbreaks much more quickly. This is critical to the government's ability to take action to prevent the spread of foodborne diseases before they become full-fledged catastrophes like the recent spinach and peanut butter outbreaks.

In a food distribution system in which ground beef from a single cow can wind …

July 2, 2009 by Thomas McGarity

On Wednesday, Representative Henry Waxman introduced a comprehensive “Food Safety Enhancement Act” (116-page discussion draft) to repair part of a federal food safety protection regime that has been badly broken for several decades. Waxman was joined by Representatives Diana DeGette, John Dingell, Frank Pallone, Bart Stupak, and Betty Sutton; the House Energy and Commerce Committee will hold a hearing on the issue on Wednesday, June 3.

A key problem with the current system is that it employs regulatory tools developed during the early twentieth century to address the risks posed by a radically different twenty-first century food production and delivery system.

The existing regime is built upon the assumption that state and local governments can adequately address the risks of a largely local food supply with occasional assistance from a federal Food and Drug Administration that focuses primarily on animal feeds, food additives and a modest quantity …

April 3, 2009 by Thomas McGarity

On Wednesday, April 1, the Supreme Court issued its ruling in Entergy vs. EPA, holding that it was permissible for EPA to use cost-benefit analysis as its method of regulatory analysis in devising a regulation on power plant water intake structures.  Member Scholar Amy Sinden blogged on the decision that day, here.  Member Scholar Thomas McGarity adds a thought:

One of the most significant problems with cost-benefit analysis is its tendency to "dwarf soft variables." These "soft variables" are things that have value to all of us but are not typically traded in markets and are therefore difficult to quantify in any rigorous way. A good example of a soft variable is the value of the aquatic organisms that are not directly consumed by humans but will, along with those that are consumed by humans, be destroyed under the technology that EPA approved under the cost-benefit …

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