Eye on OIRA: Is EPA About To Take a U-Turn on Coal Ash?
For the past 6 months, OIRA has hosted an all-out assault on EPA’s proposed coal ash waste rule, as a parade of representatives from King Coal and the coal ash reuse industry have walked in to attack any and every aspect of the hybrid approach the agency reportedly proposed. (Under the hybrid approach, EPA would regulate coal ash waste as a “hazardous” substance, unless it was dedicated to certain forms of beneficial use, in which case it would be regulated as “non-hazardous”.) Because these attacks were being conducted behind OIRA’s closed doors, it's impossible for the public to discern what, if any, effect they were having on EPA and its preferred hybrid approach. As OIRA’s review has stretched months beyond the maximum time limit allowed by Executive Order 12866, we've become more and more concerned.
An important story from Dawn Reeves of Inside EPA last week suggests things aren't looking good for the coal ash rule. Citing an unnamed but “informed” source, Reeves reports that later this month EPA will not issue a proposed rule identifying the hybrid approach as the agency's preferred regulatory option. Instead, the source states that the agency will …
The Competitive Enterprise Institute is upset with the way administrative law works. On Thursday they released their annual report on the costs of regulations. I hesitate to dignify it with pixels, but here goes.
CEI has a problem with agency rulemaking altogether:
Congress should answer for the compliance costs (and benefits) of federal regulations. Requiring expedited votes on economically significant or controversial agency rules before they become binding on the population would reestablish congressional accountability and would help fulfill the principle of “no regulation without representation.”
First, CEI owes an apology to our revolutionary forebears for bending the notion of “no taxation without representation” into an anti-regulatory chant. And while I’m diverting, exactly who is without representation in this construction? More significantly, long before agencies adopt regulations – and in many cases, a very long time before they adopt them – elected officials have already passed health and …
Informal rulemaking under the Administrative Procedure Act was, as the late Kenneth Culp Davis opined, "one of the greatest inventions of modern government." It not only decreased the procedural requirements (and therefore the overhead) of “formal” rulemaking, but it also broadened the universe of persons able to participate in the informal proceeding to the public at large. Subsequently, other laws, such as the Freedom of Information Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act, have expanded the ability of the public to monitor agency activities, if not to participate in them. BTI (before the Internet), agencies informed the “public” of proposed rules by publication in the Federal Register, which was widely available in public libraries. Interested members of the public could then submit comments on the proposal through the U.S. Mail (or private express carriers). Of course, those “in the know …
The system of checks and balances devised by the Framers of the Constitution 220 years ago was all about the sharing of power. In practice, it makes for a messy flow chart, and lends itself to lots of inside-the-Beltway conversation about who’s in, who’s out, who’s winning and who’s losing. But as messy as the how-a-bill-really-becomes-a-law flow chart is, the structure within the White House itself usually features one constant: When the President says jump, staffers ask how high.
Every now and again, however, things get turned on their head, and the forces of bureaucracy manage to thwart Presidential will. That dynamic appears to be at work right now in the White House Office of Management and Budget, where Obama appointees Peter Orszag and Cass Sunstein, the director of OMB and Administrator of the Office of Information and Regulatory Affairs, respectively, seem to …
Fans of The Hitchhiker’s Guide to the Galaxy have long celebrated the number 42 as the “answer to the ultimate question of life, the universe, and everything.” Now, the number 42 also happens to be the number of meetings that OIRA has hosted regarding EPA’s pending coal ash rule, as it works toward developing the Obama Administration’s answer to the ultimate question of how to regulate the disposal of this toxic waste.
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OIRA Meetings on Coal Ash, as of April 5, 2010
(Click links to see attendees and examine documents presented to OIRA staff.)
Parties Supporting EPA Proposal (13)
It’s official: Centralized regulatory review is trickling down to the states. Last month, in one of his very first actions as the newly elected Governor of New Jersey, Chris Christie issued a pair of sweeping executive orders (no. 1 and no. 2) mandating centralized review of all state agency regulations to ensure that they are justified by cost-benefit analysis (CBA). The orders’ provisions mirror those of a controversial executive order issued by New York Governor David Paterson last August (for critiques of the Paterson order, see Rebecca Bratspies and Sidney Shapiro). New York and New Jersey join a growing number of states that employ some form of centralized regulatory review—a group that includes Arizona, Hawaii, Illinois, Oklahoma, Pennsylvania, Virginia, and Wisconsin. Will more states follow New York and now New Jersey by instituting their own version of the Office of Information and Regulatory Affairs (OIRA …
The Workforce Protections Subcommittee of the House Education and Labor Committee held a hearing Tuesday on the Protecting America’s Workers Act of 2009, legislation that would, among other reforms, modernize workplace health and safety penalties. More than a decade ago, I testified at a similar hearing in the House of Representatives on the same subject. The need for stronger OSHA penalties was apparent then, and it is no less apparent today.
The hearing is memorable to me because I testified along with a father whose son was killed on a construction site while working at a summer job between years of college. His son was working on one of the floors of a multi-story building under construction. He was asked to carry some construction materials across the floor of the building from one side to the other. He piled up the materials in his arms with …
A few congressional hearings today we're keeping an eye on:
- Catch Shares. The House Natural Resources' Subcommittee on Insular Affairs, Oceans and Wildlife will discuss "catch shares" as a fisheries management policy. Previously, CPR Member Scholar Rebecca Bratspies discussed the limitations of catch shares, and in December applauded NOAA for moving forward cautiously.
- Protecting America's Workers Act. The House Education and Labor's Workforce Protection Subcommittee will discuss HR 2067, which would amend the OSH Act to protect more workers and increase penalties for employers who break the law.
Federal Rulemaking and the Regulatory ProcessPOSTPONED. No new date announced. . The House Judiciary Commiteee's Subcommittee on Commercial and Administrative law will hold a hearing on our favorite topic -- the doings of the White House's Office of Information and Regulatory Affairs.
In a rare public appearance at the Brookings Institute Wednesday, Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein is quoted by BNA’s Daily Report for Executives saying that his ambitious plans for revamping Executive Order 12,866 – the document that governs much of the process of regulating, and particularly OIRA’s role in it –have been tabled for the time being as he and his staff study the lengthy comments presented by a broad range of industry and public interest groups. “So what we’ve been doing under the existing framework is working to implement the President’s agenda in a way that is also alert to the content of the comments we’ve gotten,” he explained.
Meanwhile, outside the event, a small group of demonstrators, including one dressed as Sesame Street character Oscar the Grouch, demonstrated against “Ash Sunstein,” whom they accused of …
Thirty-eight years ago today, the dam holding back a massive coal-slurry impoundment (government-speak for a big pit filled with sludge) located in the middle of Buffalo Creek gave way, spilling 131 million gallons of black wastewater down the steep hills of West Virginia. The black waters eventually crested at 30 feet, washing away people, their houses, and their possessions. By the end of the catastrophe, 125 people were dead, 1,121 were injured, and more than 4,000 were left homeless.
Interviewed years later, Jack Spadaro, an engineer teaching at West Virginia’s School of Mines when the dam broke, told the West Virginia Gazette: “The thing that disgusted me was that people in the valley had been saying for years there was a problem there. They’d been evacuated many times before because of the fear of a dam failure.” Spadaro added, “I went through stacks …
