Midnight Regulations: Congress Lends a Hand
The following is cross-posted by permission from Executive Watch, a blog maintained by the Duke Law School Public Law Program.
Every time the presidency has changed parties in recent years, the outgoing president has issued regulations in the final months of his presidency implementing policies at odds with the policies of the incoming president. The critics of these regulations invariably deride them as “midnight regulations” that have been rushed through the regulatory process. Propublica is monitoring the Bush midnight regulations, here. Then the incoming president sets out to stop or undo many of them by issuing a regulatory “stop order” to the agencies and departments.
Stopping a regulation from taking effect is much less resource intensive than undoing one, so every recent president stop order, including President Obama’s, has contained a request that no agency or department send any regulations for publication in the Federal Register until they have been reviewed by a political appointee of the new president, and that they withdraw any regulations that the Office of the Federal Register has received but not published.
For regulations that have been published, the Obama memorandum – which was issued by his chief of staff, Rahm Emmanuel, on January 20 …
Walk into any grocery store and you’ll find a barrage of labels on every product that proudly and loudly proclaims its ecofriendly pedigree: Organic! Fair trade and shade-grown! Local! An article last week in the Wall Street Journal posits two of the latest entries into the fray: virtual water and water footprint.
Relatively new additions to the enviro-lexicon, “virtual water” is the volume of water required for producing a commodity, and “water footprint” measures “the total volume of freshwater that is used to produce the goods and services consumed by the individual or community.” The water is “virtual” because it is often not part of the final product. For a cotton t-shirt, for example, the virtual water accounts for the water needed to grow and irrigate the cotton and the water used during the manufacturing process. The average water footprint of a country depends on four …
Time Magazine has a piece this week on Cass Sunstein’s likely nomination to be the Obama Administration’s “regulatory czar” (director of the Office of Information and Regulatory Affairs) and the debate over the use of cost-benefit analysis it has touched off. Despite Professor Sunstein's progressive views on most issues, progressives are concerned that his methods of regulatory analysis, if and when he’s confirmed, may not differ significantly from those used during the Bush years. The Time story, here, captures the budding debate.
Milwaukee Journal-Sentinel reporters Susanne Rust and Meg Kissinger are about to pick up some well deserved hardware for their series on bisphenol A (BPA) – a plastic hardener that leaches from plastic when microwaved. The substance causes neurological and developmental hazards, but it is ubiquitous in food storage containers, including water bottles and baby bottles. Rust and Kissinger’s 2007-08 reporting on the problem, and the FDA’s eagerness to overlook it, ignited public controversy, causing FDA to reconsider a decision to take a pass on regulating BPA. In fact, FDA has promised an update on the issue this week.
In April, Rust and Kissinger will receive one of journalism’s highest honors for the series, the George Polk Award from Long Island University. The series has already been awarded the 2008 John B. Oakes Award for Distinguished Environmental Journalism from Columbia University's Graduate School of Journalism …
In recent weeks, an unusual convergence of events has served to elevate somewhat the public profile of cost-benefit analysis (CBA). Before then, CBA was an obscure and highly complex tool of policy analysis—the kind of thing that hardcore policy wonks would wonk about when the subjects of their usual policy wonkery weren’t wonkish enough. Foreseeable future events suggest that the public profile of CBA will continue to rise.
The process began in early January when word emerged from the Obama transition team that the then-President-Elect planned to name Harvard law professor Cass Sunstein to head the Office of Information Regulatory Affairs (OIRA). A little known but powerful bureau in the White House Office of Management and Budget (OMB), OIRA supervises the entire federal regulatory apparatus, imposing its will by individually reviewing all major federal regulations through the lens of CBA. OIRA’s use of CBA …
Almost two years after the Supreme Court declared, in Massachusetts v. EPA, that CO2 is an “air pollutant” for purposes of the Clean Air Act, this announcement, paired with the decision to reconsider California’s request for permission to regulate greenhouse gas emissions from cars (see Rick’s post and the Federal Register notice), shows that the Obama administration is serious about applying the Clean Air Act to greenhouse gases.
That’s a good thing. Although it would be awkward to develop and implement a National Ambient Air Quality Standard for CO2, as Michael Hanemann and I have explained, the technology-based and planning provisions of the Clean Air …
CPR Member Scholar Nina Mendelson has a piece today in The New York Times's "Room for Debate" feature on the news that EPA is working its way toward regulating carbon dioxide emissions under the Clean Air Act. As The Times quite directly and correctly puts it, "Under orders from the Supreme Court, which the Bush administration ignored, President Obama’s new head of the Environmental Protection Agency is expected to determine" whether CO2 should be regulated. Among those joining the Times debate is John Graham, former Bush administration "regulatory czar." (He's opposed to regulating, not surprisingly.) Mendelson writes:
The announcement by Lisa Jackson, the Environmental Protection Agency’s administrator, that she will determine whether greenhouse gases endanger public health and welfare seems a welcome signal that the agency will respond to the urgency of global warming. As a legal matter, Ms. Jackson probably has little …
Over on Legal Planet, CPR Member Scholar Holly Doremus of UC-Davis and -Berkeley posted a blog Sunday on an upcoming decision on whether to introduce the Suminoe oyster, native to China and Japan, to the Chesapeake Bay. She writes:
The U.S. Army Corps of Engineers issued a draft EIS last fall considering the impacts of several alternatives, including release of fertile Suminoe oysters and confined aquaculture of sterile oysters.You might wonder why federal agencies are involved at all. Virginia and Maryland proposed the introduction, prodded by the Virginia Seafood Council, which has conducted its own experiments with Asian oysters in tributaries to the Bay.
A Clean Water Act NPDES permit would seem to be required to introduce these organisms into the Bay, but until recently EPA was busy denying that it had any duty to regulate the discharge of living organisms into waterways. The Corps …
You’ve heard it before, and you’ll hear it again: climate change is different from traditional environmental problems. It’s global, for one thing. Carbon dioxide isn’t a traditional pollutant, for another. It doesn’t cause cancer. It doesn’t kill fish. Plants use it in photosynthesis; every human and animal emits it. The problem is that combustion creates it, too, which is why our modern, engine-loving world has too much.
CO2 is also fungible. One ton of CO2 is as good or bad as any other. So, the thinking goes, trading greenhouse gas emissions makes good sense: under such a program, sources will either reduce their emissions or pay to emit, but as long as the cap is stringent enough, emissions will decrease overall. And those localized concentrations of pollution that environmentalists ordinarily worry about when it comes to trading regimes, those …
Editor’s Note: Following is the last of four posts focused on federal preemption issues and featuring CPR Member Scholars Thomas McGarity and William Buzbee. In December, both published books on the issue. (The first blog post in the series includes some background on the issue. The second discussed the very real impact the outcome of the debate has on individuals. The third looked at the prospects for progress on the issue under the Obama Administration.) McGarity’s book is The Preemption War: When Federal Bureaucracies Trump Local Juries. Buzbee’s is Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question, and features chapter contributions from 15 experts, including Buzbee and McGarity, as well as a number of other CPR Member Scholars. We asked Professors McGarity and Buzbee to discuss the books and the issue, and here's the final installment of that conversation …
