June 22, 2011 by Sidney Shapiro

Four Anti-Regulatory Proposals to Get Senate Hearing Thursday

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 have been held constant or even shrank, while the number of imported toys, new chemicals, and job hazards has increased. The result has been a series of catastrophic regulatory failures, such as the BP oil spill, salmonella outbreaks, and the Upper Big Branch Mine Disaster.

Under these circumstances, the image of agencies running …

June 2, 2011 by Sidney Shapiro

The Obama administration has been busy with its regulatory look-back, which required agencies to identify health, safety, and environmental standards to be reviewed in the coming months, with the possibility of eliminating or modifying them (in some cases, the specific proposal for modification or elimination was already made last week).   In explaining why the look-back is necessary, the administration sounds too much like the Chamber of Commerce or other anti-regulatory critics and not enough like candidate Obama, who once unapologetically asserted that “government should do that which we cannot do for ourselves.” Cass Sunstein, administrator of the Office of Information and Regulatory Affairs (OIRA), should adjust the tone when he testifies before a subpanel of the House Energy and Commerce Committee tomorrow. Instead of deploying another batch of anti-regulatory rhetoric, the administration should use more language that reminds the public of the value of regulation at the …

April 15, 2011 by Sidney Shapiro

Congress charged the Office of Advocacy of the U.S. Small Business Administration (SBA) with the job of representing the interests of small business before regulatory agencies, such as the Occupational Safety and Health Administration (OSHA). As an agency of the federal government, it has an obligation to taxpayers to get its facts straight before it speaks. Lately, it has ignored this basic obligation, most notably sponsoring a study that used flawed methodology to claim that regulations impose $1.75 trillion in costs every year.

Now, Dr. Winslow Sargeant, Chief Counsel for Advocacy at the SBA, has upped his attack on OSHA’s efforts to update its noise regulation, making assertions that are highly misleading and at times simply wrong. In an interview last week with the Phoenix Business Journal, Sargeant claimed:

The OSHA rule was a solution to a problem that had already been solved. Basically …

March 30, 2011 by Sidney Shapiro

Last week, the White House’s Office of Information and Regulatory Affairs (OIRA) approved a survey to be conducted for the Occupational Safety and Health Administration (OSHA) as part of the agency's efforts to develop an Injury and Illness Prevention Program (I2P2) standard. Surveys, like this one, have to be approved by OIRA according to the Paperwork Reduction Act, and the lengthy approval may stall development of the I2P2 standard for four or more months for no apparently good reason. OIRA made only minor changes to the draft documents.

The I2P2 standard is OSHA’s signature regulatory initiative, and it comes in the nick of time. With its small and dwindling staff, a result of Congress putting it on a starvation diet of resources, OSHA has found it difficult to update its safety and health standards to protect workers, or to adopt new ones to address hazards …

March 11, 2011 by Sidney Shapiro

This coming April 20 will mark the one-year anniversary of the first day of the BP Oil Spill – a three-month polluta-polluza that eventually became the largest accidental marine oil spill in the history of the world. That was the night that a long series of failures finally came to a head: failures aboard the Deepwater Horizon by BP and its contractors, failures in the enforcement of regulations intended to prevent such disasters or at least limit the damage from them, failures in the crafting of the regulations governing the process by which BP won approval to drill, and failures in the drafting of the legislation from which flowed the regulations.

For the 126 workers on the Deepwater Horizon that night, the sounds and images of those failures must have been terrifying beyond imagining. Eleven of them didn’t make it home alive, and another 17 were severely …

Feb. 8, 2011 by Sidney Shapiro

Having voted to repeal health care legislation, House Republicans have now taken aim at government regulations, describing efforts to protect people and the environment as “job-killing.”  This claim conveniently papers over the fact that it was the lack of regulation of Wall Street that tanked the economy and caused the current downturn.  But nonetheless, seeking rhetorical points to boost their anti-regulations campaign, House Republicans are trumpeting a recent report, done for the Small Business Administration’s Office of Advocacy. The report, authored by Nicole Crain and Mark Crain, claims that regulation cost the U.S. economy $1.75 trillion dollars in 2008. Upon examination, it turns out that the estimate is the result of secret calculations, an unreliable methodology and a presentation calculated to mislead. 

Crain and Crain’s $1.75 trillion estimate is far larger than the estimate generated by the Office of Management and Budget …

Jan. 14, 2011 by Sidney Shapiro

Republican legislators have been scheming for years about ways that they can slow down, if not stop, needed health, safety and environmental regulations. But their latest effort, though creative, is perhaps their most ill-conceived. They’re calling it   “The REINS Act” (in the last Congress, H.R. 3765 sponsored by Rep. Geoff Davis (R-KY), S. 3826 sponsored by Sen. Jim DeMint (R-SC)), and, if adopted,  no new "economically significant" regulations would take effect unless affirmatively approved by Congress, by means of a joint congressional resolution of approval, signed by the President.  The proposal is a genuinely radical departure, plainly designed to gum up the regulatory works. Republicans have promised to hold congressional hearings on the bill early this year.

The REINS Act would make Congress the final arbiter of all significant regulatory decisions. While superficially this may seem like a good idea – after all, Members of Congress …

Dec. 14, 2010 by Sidney Shapiro

A particularly revealing story in The Washington Post this weekend reported on a sordid tale of regulatory failure that may have helped contribute to this spring and summer’s outbreak of outbreak of egg-borne salmonella that sickened more than 1,900 people and led to the largest recall of eggs in U.S. history. In an agonizing case of closing the chicken coop door after the tainted eggs had escaped, FDA finally adopted a long-delayed regulation in July – two months after the outbreak – that might have helped prevent it. And this month Congress may give FDA new authority to regulate the safety of food in light of the salmonella case and other highly publicized outbreaks of food poisoning in the last few years.

Yet, under a proposal floated in an op-ed by Sen. Mark Warner (D-VA) in the same newspaper two days later, regulators would be forced …

Aug. 31, 2010 by Sidney Shapiro

Cross-posted from the Huffington Post.

Eager to blame the state of the economy on the Administration, House Minority Leader John Boehner recently tried to argue that the Administration's regulatory agenda is standing in the way of recovery. Sadly for Boehner, he tried to make that case shortly before the fifth anniversary of Hurricane Katrina, and while the smell of the BP oil spill still lingers in the Gulf. By any reasonable measure those two incidents are among the costliest and most devastating examples of the human and monetary costs of lax regulation.

In a letter to President Barack Obama, Boehner criticized the Administration's plans to implement 191 rules with potential economic costs greater than $100 million, arguing that "uncertainty" in the business community about the fate of the regulations is "contributing significantly to the ongoing difficulty our economy is facing." Apparently, Boehner and other opponents …

May 19, 2010 by Sidney Shapiro

Cross-posted from ACSblog.

The Center for Progressive Reform (CPR) today released a white paper examining "plausibility pleading"-the Supreme Court's heightened pleading standard that plaintiffs must satisfy in order to bring their claims in federal court. The paper, Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants, comes after the Court's decision one year ago this week in Ashcroft v. Iqbal that this standard applies to all types of federal cases. The Court first created this standard in Twombly v. Bell Atlantic, three years ago.

Iqbal and Twombly will lead to the dismissal of meritorious cases, thereby weakening the civil justice system and making it more difficult to hold businesses or the government accountable for wrongful actions. Increased dismissals will also deprive federal regulators of vital information needed for improving the regulations that protect people and the environment. Our paper therefore calls on Congress to …

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