McGarity columns on Wyeth vs. Levine Preemption Case
CPR Member Scholar Thomas McGarity had op-eds over the weekend in three Texas newspapers -- the Dallas Morning News, Houston Chronicle and Austin American-Statesman. His topic is Wyeth vs. Levine, last week's blockbuster case from the Supreme Court, in which the Court rejected the Bush Administration's multi-year effort to use the federal regulatory process as a backdoor method of shielding manufacturers from lawsuits brought by customers their products injure.
The case was brought by professional musician Diana Levine, who went to a clinic with a migraine headache, and received nausea medication that eventually resulted in her arm being amputated. Such outcomes were a possibility known to Wyeth, the manufacturer, but the label on the drug, according to the jury that decided the case in Levine's home state of Vermont, failed to adequately warn about how to prevent it from happening. Wyeth argued in court that Levine's case was "preempted" because the FDA had approved its label, thus insulating the company from such failure-to-warn suits brought under state tort law. That's an argument that the Bush Administration made with some regularity over the past several years, in the context of medicine (FDA), cars (the National Highway Traffic …
In the decade between 1994 and 2004, the bottled water industry enjoyed a meteoric rise as consumers flocked to their product, paying more per gallon than gasoline and neglecting a virtually free source of water – the tap. Bottled water drinkers formed fierce allegiances to their favorite brands, elevating bottled water beyond a beverage to a symbol of refinement.
More recently, opposition to bottled water has grown, built around an eclectic mix of advocates including activists, restaurateurs, and religious leaders. Proposals for bottled water operations evoke vocal protests in local communities. Production of bottled water requires large quantities of energy and generates tons of waste with long-term environmental impacts. Some cities have responded by taxing bottled water, as in Chicago, and by banning bottled water from official city functions, as in San Francisco. Toronto not only banned the sale and distribution of bottled water on city premises but …
The Occupational Safety and Health Administration (OSHA) is the most maligned and least respected federal agency with responsibility for protecting people’s lives. Now that Hilda Solis has been confirmed as Secretary of the Department of Labor, we can only hope that a new OSHA administrator with a strong stomach, an iron will, and a “yes we can” attitude will be chosen to take over this troubled agency.
Workplace injuries and illnesses numbered 4.1 million in private sector workplaces for 2006, or an average of 4.4 per 100 workers, down from 10.9/100 in 1972. Unfortunately, in all likelihood, these figures substantially understate the true incidence of injuries and illnesses. Recent studies by independent economists suggest that actual injuries may be as much as 30 to 69 percent higher than Bureau of Labor Statistics estimates. A total of 5,488 fatal work injuries were …
The following is cross-posted by permission from Legal Planet.
The Bush administration’s last-minute ESA (non)consultation rule is getting almost as much attention now as it did during the comment period. Then, the administration reportedly received more than 300,000 comments, the vast majority of them negative. Those objections were, of course, quickly swept under the proverbial rug so the administration could finalize its rule significantly cutting back on the application and scope of the consultation process. Now, Congress and the administration are rushing to figure out how to return the consultation process to its prior state.
On Wednesday, the Washington Post ran a “mission accomplished” headline: Obama Reverses Bush Rule on Protection of Endangered Species. Not so fast. Although President Obama took a significant step toward that end, the job is not yet complete. It would be a mistake for environmental advocates to stop pushing …
This morning the Supreme handed down its ruling in Wyeth v. Levine. In its majority opinion, the Court rejected the argument of pharmaceutical giant Wyeth that the FDA’s approval of its label for Phenergan effectively “preempted” a tort suit brought against it by a patient claiming that the manufacturer failed to provide adequate warning about the dangers of the drug. The patient, Diana Levine, had the drug administered as part of treatment for a migraine, and ended up having her arm amputated after the drug reached an artery and killed tissue. Professor Mendelson issued the following statement:
Today's ruling is a critical victory not just for Diana Levine but for consumers across the nation. The case marks a setback for manufacturer’s efforts to deny Americans the basic right to go to court when they suffer injuries from flawed products or inadequate warnings.
The Court …
After suffering years of neglect at the hands of the Bush Administration and conservatives in Congress, Superfund may be on the verge of springing back to life. That at least is the objective of a new proposal from President Obama, included in his recent budget outline, calling for the reinstatement of a tax on polluting industries to fund toxic waste cleanup efforts.
Congress created Superfund in 1980, responding to national furor over the toxically infamous Love Canal. Its mission was to clean up such toxic waste sites across the nation, first identifying sites in need of cleanup, then prioritizing them, then forcing the relevant polluters to clean up their mess, or, if no polluters could be identified or made to take responsibility, paying for the cleanup. The bill for this latter set of cleanups was to be footed by a multi-billion dollar trust fund (hence, Superfund), supported …
Last Wednesday, Secretary of the Interior Ken Salazar announced that the Bureau of Land Management is going to "review and reconsider" the oil shale leases proposed in the waning days of the Bush Administration. The Bush proposal would have potentially opened 1.9 million acres of land in Utah, Colorado, and Wyoming for oil shale development and would have locked in a paltry royalty rate. The Obama Administration is going to take 90 days of public comment on the shortcomings of the old plan and then come up with a new one, potentially in a very short time frame.
Salazar’s and BLM’s comments on the oil shale research, development, and demonstration (RD&D) program do not paint a clear picture about the Obama Administration’s agenda. Last week, Salazar spoke to the National Governors’ Association and told them that oil shale has “great potential” and “that …
The Center for Public Integrity released a report last week finding that the number of lobbyists seeking to influence federal policy on climate change has expanded more than 300 percent in five years. The report also finds that special interest industry lobbyists outnumber public interest environmental advocates 8-to-1.
That’s right. The most important environmental legislation in our lifetime is likely to come before Congress this year, and the overwhelming majority of meetings that Members of Congress have with advocates will be with folks interested in either watering it down or gumming it up.
Significantly, the report identifies the U.S. Chamber of Commerce and the National Association of Manufacturers (NAM) as the “leading voices against climate action.” While most climate change junkies would not be surprised that these groups oppose any action on climate change, there’s more to the story. Industry folks are suiting up …
Late last week, I sent a letter to Peter Orszag, Director of the White House Office of Management and Budget that, among other things, called on OMB to allow for public participation in the design of its new Executive Order governing federal regulatory review. I’m happy to see that OMB has decided to do just that, with its announcement in Thursday’s Federal Register that it would “invite public comments on how to improve the process and principles governing regulation.”
As OMB observes, the White House has no obligation to seek public comment on executive orders. The Federal Register notice says:
Executive Orders are not subject to notice and comment procedures, and as a general rule, public comment is not formally sought before they are issued. In this case, however, there has been an unusually high level of public interest, and because of the evident importance …
On Monday, the U.S. Supreme Court announced that it would not be accepting an appeal of a case involving the Bush Administration’s regulatory plan for reducing air mercury emissions from power plants. For the last two decades, the regulation of mercury air pollution has been caught up in a long and winding journey reminiscent of Homer’s Odyssey. With the Supreme Court’s announcement, however, it appears that the mercury air pollution saga may soon be reaching its long-awaited conclusion.
This story began in 1990 when Congress, frustrated by EPA’s past failure to regulate toxic pollution effectively, amended the Clean Air Act to put regulation of a number of specific toxic pollutants on the fast-track. In particular, these amendments directed EPA to undertake particular regulatory actions, and they set strict deadlines for EPA to achieve these actions. Among the pollutants specifically targeted by these …
